How Cannabusinesses Can Obtain Intellectual Property Rights
Patenting products you’ve created or designed can bring in lots of greens. This may also apply to the legal marijuana industry, but before you think you can patent your strain, read on.
Can You Protect Your Cannabis IP (Intellectual Property)? from CannabisNet on Vimeo.
The United States Patent and Trademark Office (USPTO) is the government agency tasked with the responsibility of issuing patents and trademarks to businesses for products or services that they’ve invented. While the USPTO still won’t patent or trademark marijuana strains generally, there are ways around it so that cannabusiness owners can benefit. Eventually, we’re hoping, the USPTO will become more lenient especially as the marijuana industry continues with its high growth rates.
However, we’ve seen some exceptions. It also seems as though the USPTO’s stand on trademarks differs from patents when it comes to marijuana. Last December 20, 2016, Cannabis Sativa’s Ecuadorian Sativa was awarded US Patent PP27,475. This patent is the result of many years of challenging legal work behind the scenes, and eventually the company will be able to license or market their patented strain in the future.
A recent LA Times article highlights the case of hi products and also discusses the strategies being used by different marijuana businesses to trademark ancillary products, since it’s the only way they can protect their intellectual property rights. The article’s author James Rufus Koren says, “The goal of trademark law is to prevent consumer confusion, and different companies can use the same name for products as long as their products are in different categories and wouldn't cause confusion,” and he also adds “"trademark protection can apply not only to products a company makes now, but to products that a company might reasonably be expected to make later on — what trademark lawyers call the zone of natural expansion.”
But before you get disheartened, here’s what you can do:
Marijuana Products Under State Trademarks
In certain states where marijuana is legal in one form or another, it’s possible to be granted state trademarks to products and services derived from marijuana or marijuana products. Once you’re granted state trademarks, this means that you have trademark protection in that state and this gives you an edge as soon as the USPTO can accept trademark registrations because you’ll be able to more easily expand your trademark footprint. The California Secretary of State Office is alraedy accepting applications from marijuana products although the office hasn’t confirmed if they will actually grant these. But when you consider the impact and size of California on the marijuana industry as a whole, it’s probably the most likely of all states to grant applications to business owners.
Marijuana Collateral Products and Services Can Apply for Federal Trademarks
The USPTO has already awarded several trademarks in the past for a range of marijuana collateral products. These include vaporizers, grinders, rolling papers, marijuana-themed apparel and more. Some of these brands include Marijuana Monkey, Ganja Guy, Halcyon Haze, and The Original Amsterdam. Even services like Mellow Pages and Fortune 420, which are marijuana directories, have also been granted trademarks by the USPTO.
Common Law Trademarks
For marijuana brands who want to market their products, common law trademark rights can help. The common law doesn’t allow infringement damages although it does enable trademark owners the benefit of enjoining an infringing use. Marijuana businesses that undertake aggressive means of protecting their brands will eventually be given a priority with first-in-use commerce date once the USPTO finally allows the registration of marijuana trademarks.
Marijuana Trademarks As Defens
Although the USPTO still doesn’t generally issue trademarks to marijuana products, businesses that are already facing trademark infringement actions can refer to lack of likelihood of confusion or fair use and other trademark defenses to protect them.
Get Moving Now…
But marijuana business owners need to take note that each case will be different. The best way to move forward would be to work with an attorney with significant experience in working with trademarks. They would be able to give good advice about filing state applications and even federal applications down the line. In addition, attorneys can also provide the clearance search and opinion, which are highly recommended for businesses no matter what industry although it’s particularly beneficial to those in the marijuana industry considering the enforcement issues and special brand protection faced by many.
Once a trademark has been issued, business owners also need to do their part to make sure that its value is maintained. Marijuana businesses will need to continue to monitor infringement issues and work on enforcing their trademark against third-parties.
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