Earlier this month, the United States Patent and Trademark Office (“USPTO”) released an official examination guide in response to the Agricultural Improvement Act of 2018 (“2018 Farm Bill”) and associated applications. While the guide offers some clarity for the federal registration of trademarks for prospective hemp mark holders, it also highlights the absence of a complete and cohesive federal framework for the hemp industry.
In the guide, the USPTO reinforces their stance on the refusal of applications for goods or services associated with a federally illegal substance, noting that the Controlled Substances Act (the “CSA”) prohibits the manufacturing, distributing, dispensing, or possession of “Marijuana,” which it defines as “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin,” although this definition is subject to some exceptions. The 2018 Farm Bill added an exemption to the definition of Marijuana under the CSA to include “Hemp,” defined as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.” In effect, the 2018 Farm Bill removed Hemp from the list of controlled substances contained within the CSA.
Cannabidiol (“CBD”), one of the more popular compounds derived from Hemp, has created a boom in market interest and is accordingly addressed in the USPTO’s guide. CBD’s use as a food additive or in dietary supplements has produced significant confusion as authorities increasingly cite concern over violations to U.S. Food and Drug Administration (“FDA”) regulations. According to the Federal Food Drug and Cosmetic Act (“FD&C”), products containing substances currently being researched or yet to be approved by the FDA breach current federal guidelines. Since CBD is in the process of FDA clinical testing and is present in existing FDA-approved drugs, the USPTO concludes, “registration of marks for foods, beverages, dietary supplements, or pet treats containing CBD will still be refused as unlawful under the FD&C, even if derived from hemp, as such goods may not be introduced lawfully into interstate commerce.”
It is unclear whether Hemp cultivators will be able to successfully register trademarks related to the cultivation or production of Hemp under the USPTO’s new regulations. In order to assess applications involving the production of Hemp, the USPTO examines individual applicant authorization as determined by the 2018 Farm Bill to conduct said operations. The bill states that approval for commercial Hemp operations must be issued by a state, territory, or tribal government in accordance with a production plan certified by the U.S. Department of Agriculture (“USDA”). Unfortunately, as the USPTO notes, “to date, the USDA has not promulgated regulations, created its own hemp-production plan, or approved any state or tribal hemp-production plans,” meaning that state agencies, tribes, or institutions of higher education are the only parties permitted to produce hemp. Until the eventual adoption of a USDA hemp policy, there is not an established procedure for validating lawful hemp cultivation operations.
The USPTO rules also address mark applications received prior to the 2018 Farm Bill’s passing. Intent-to-use applications for hemp products received by the agency before December 20, 2018, will be refused on the grounds of, “the unlawful use or lack of bona fide intent to use in lawful commerce under the CSA,” at the time of filing. In order to resubmit for further review, applicants must amend the filing date to December 20, 2018, as well as specify that products contain federally permissible levels of THC in the identification of goods. Additionally, applications received in connection with products already used in commerce will need to make the same corrections.
Despite the legal explanation provided for Hemp or Hemp-derivative mark applications, the USPTO’s new procedures raise some concern. The exact number of received mark applications in need of amending is unknown, as is the means by which the USPTO plans to assign priority for returned applications. Filing dates can be critical for settling trademark disputes, creating a substantial logistical challenge in processing and responding to the amended applications all using the December 20, 2018 file date.