Trademarks: CBD and Hemp Products

Since the passage of the 2018 Farm Bill, hemp was removed from the Controlled Substances Act (CSA) list of Schedule I substances and will be treated the same as any other commodity crop.  As such, when hemp plants are properly sourced, the cannabinoid (CBD) extracts are also legal.  However, industrial hemp manufacturers must be careful that the tetrahydrocannabinol (THC) limit of 0.3% (by dry weight) is met in order for the Farm Bill’s protections to apply.

After the Farm Bill legalized hemp, the Food and Drug Administration (FDA) recognized that hemp was legalized but retained the authority to regulate cannabis products involved in interstate commerce (Under the Federal Food, Drug, and Cosmetic Act and Section 351 of the Public Health Service Act.)  The Food, Drug, and Cosmetics Act (FDC Act) grants the FDA broad regulatory authority over any product intended for human consumption.   The FDA has publicly stated that CBD, as the active ingredient in an approved drug (Epidiolex), cannot be marketed or sold for any other type of consumption, specifically in the form of dietary supplements (vitamins, minerals, herbs and botanicals, amino acids, and their derivatives) made for human consumption.

The FDA’s exclusion of CBD intended for human consumption does not mean that no CBD can be lawfully sold in the US.  There are many forms of CBD which are not intended for human consumption, such as topical analgesics and skin creams, sanitizing products, shampoos and conditioners, and other cosmetic products.  Any CBD product that is intended for human consumption is, generally speaking, is outside the ambit of the FDA.

CBD and Hemp Trademarks

A company’s identity and brand is one of its most important and valuable assets. Trademarks include business names, symbols, phrases, logos, and other distinctive marks to identify a product or service. These trademarks are generally developed at great time and expense. Trademarks and other intellectual property rights can be purchased, sold, licensed, or otherwise transferred to others – with limited exceptions.  Thus, trademarks are extremely important to all business owners that provide a product or service.

CBD and hemp service and/or product trademarks are now generally eligible for federal trademark registration through the United States Patent and Trademark Office (USPTO).  The USPTO has published specific guidance related to trademarks involving hemp, CBD, and cannabis – USPTO Examination Guide 1-19 – Examination of Marks for Cannabis-Related Goods and Services After Enactment of the 2018 Farm Bill.  This short-and-sweet trademark guide was published by the USPTO to help the public understand the remaining guardrails on the hemp and CBD industry from the USPTO’s perspective.  Note, the USPTO’s main concern is ensuring that it only grants trademarks for proper hemp and CBD products, and not cannabis.  Trademark registration is subject to the same 0.3% THC by dry weight requirements as the FDA, DEA, and any other federal regulatory agency.

Note, as discussed above, the FDA already deems CBD intended for human consumption to be unlawful in any context other than Epidiolex.  Therefore, the USPTO will refuse any hemp or CBD related applications for any products intended for human consumption.

When a trademark application is submitted for registration (which generally takes around a year – from start to finish – to complete), the application is reviewed in detail by a USPTO examining attorney.  The examining attorney will ensure that the trademark application is properly drafted and is not procedurally defective, and will compare the applied-for trademark against all other pending and registered trademarks to ensure that there is no confusingly similar mark already published (likelihood of confusion), that the trademark is not descriptive, that the trademark is not geographically descriptive, that the trademark does not contain a surname, and other issues whereby the examining attorney would reject or refuse a trademark application.  The examining attorney will review supporting materials, for example by visiting a website that is listed as the current use in commerce of the mark.  If there are no serious defects warranting refusal, the examining attorney will publish the trademark in the Official Trademark Gazette putting the world on notice that the applicant intends to claim exclusive rights in the applied-for trademark.  Any person or business that believes it will be damaged by the registration of the applied-for mark will have 30 days to file a Notice of Opposition.  If no oppositions are filed, the applied-for trademark will then proceed to registration on (generally) the USPTO Principal Register.


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