Hemp and CBD goods and services may qualify for federal trademark protection. However, marijuana continues to be a schedule 1 drug under the Controlled Substance Act (CSA) 21 U.S.C. §812 (b)(1). The 2018 Farm Bill (The Agriculture Improvement Act of 2018) stated the term “marijuana” did not include hemp or CBD. There has been a big trend lately of trademark application filings seeking to brand CBD infused products. Not all of these applications will mature to registrations.
The enactment of the 2018 Farm Bill has caused confusion about what can and cannot be done with hemp and its derivatives, including hemp derived CBD. In trademark circles there has been a lot of discussion about products infused with CBD, much of the dialogue has centered around products regulated by the Food and Drug Administration (“FDA”). The Farm Bill did not change or alter the FDA’s authority to regulate products or goods containing cannabis or cannabis derived compounds.
Under the Food Drug and Cosmetic Act (FDCA) it is unlawful to add CBD or THC to food and introduce it into interstate commerce. It is also illegal under the FDCA to market CBD or THC products as dietary supplements regardless of whether the substances are hemp derived. The FDA does not distinguish between hemp-derived CBD and marijuana-derived CBD. Since Cannabidiol (“CBD”) is an active ingredient in a drug approved by the FDA and because it is undergoing clinical investigations, it cannot be used in food or dietary supplements without the FDA’s approval.
Therefore, if a trademark application identifies goods that are regulated by the FDA (foods, beverages, dietary supplements, etc.) those goods cannot contain CBD, or else the Trademark Office will refuse the application. The FDA has stated that there is a lack of scientific data supporting the safety of CBD added to food, and therefore the FDA cannot conclude that CBD is generally recognized as safe (“GRAS”) for use in food. However, CBD products may be eligible for federal trademark registration if the goods meet the requirement of containing less than .3% THC on a dry weight basis, as long as they are not products regulated by the FDA as mentioned above. Of course, ancillary hemp-derived goods, and services that involve hemp/CBD can be identified in the trademark application, such as educational services, websites featuring information on cannabis, computer software, entertainment services such as providing tours of hemp farms and facilities, clothing made in part of hemp etc.
Cosmetic products are treated differently by the FDA. The FDA has permitted CBD to be an ingredient in cosmetic products if the goods also meet the other established FDCA criteria. Therefore, if your trademark application identifies cosmetic goods in international class 003, those goods can contain CBD as long as the goods comply with the not more than 0.3% threshold of THC on a dry weight basis. However, making claims on CBD infused cosmetic products is still a thorny issue. If a cosmetic company makes claims that the product treats or prevents disease, it could be considered a “drug” under the FDCA. If this is the case, the product would have to meet the requirements for drugs.
In conclusion, even though a trademark applicant may be in compliance with state law, when seeking trademark protection at the United States Patent & Trademark Office (USPTO), the applicant will need to comply with federal laws as well. It is possible that your cannabis product may not qualify for trademark protection at the USPTO but may qualify for state trademark protection. If you have questions pertaining to federal trademark protection for hemp or CBD related products or services, please feel free to contact the firm for a courtesy consultation.
Fisher Stone, P.C. NYC Corporate, Small Business & Trademark Lawyer 115 Broadway Floor 5, New York, NY 10006 (212) 256-1877 https://fisherstonelaw.com/
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