New doors for cannabis trademarks may be about to open

As we often point out on these pages, cannabis companies cannot be registered trademark Applicable to many core products. United States Patent and Trademark Office (United States Patent and Trademark Office) “Refuse to register trademarks for goods and/or services that clearly violate federal laws, regardless of the legality of the activities under the laws of the state.” These goods include not only cannabis as defined in the Controlled Substances Act (CSA), but also many CBD products that are prohibited by the Federal Food, Drug, and Cosmetic Act (FDCA), such as edible foods.

Not surprisingly, the affected companies posed many challenges to the existing framework. One such challenge comes from a company called Joy Tea, which has a trademark application (88640009) for CBD beverages rejected by the United States Patent and Trademark Office.

When the U.S. Patent and Trademark Office initially rejected Joy Tea’s application, it stated that “the introduction of [into interstate commerce] Foods with CBD (an item approved as a new medicine)…regardless of whether these substances are derived from hemp. The US Patent and Trademark Office also pointed out that, as mentioned above, Joy Tea’s products do not specify the source of CBD and may cover products defined as hemp under the CSA (ie, THC content exceeding 0.3%).

At the suggestion of the USPTO, Joy Tea revised its product description to overcome FDCA’s rejection.The new description clarifies the “composition [are] It is completely derived from hemp, and its delta-9 tetrahydrocannabinol (THC) concentration does not exceed 0.3% on a dry weight basis. “Although this change takes into account the CSA’s refusal, it does not resolve the reason for the FDCA’s refusal. Happy Tea Now attractive Decision of the Trademark Trial and Appeal Board (TTAB).

In order to fully understand the nuances of disputes, it is important to understand the difference between the two most common bases of trademark applications: actual use and intention to use (ITU). When the registrant submits an application on the basis of actual use, it claims to have used the trademark in business.In contrast, ITU applications only need to be in good faith intention Use the trademark of the registrant.

The main argument of Joy Tea is that it should be allowed to register a trademark on the basis of ITU, because it anticipates the described product (CBD beverage) will It is legal when the registration is completed. In essence, Joy Tea stated that its intention to use trademarks on CBD beverages depends on the beverages becoming legal. As a result, there will be no illegal use to follow USPTO.

However, the US Patent and Trademark Office does not agree with this position. The agency believes that legality is “determined when the application is submitted, not… something that may be legal or illegal within a few years from now.”

We expect the U.S. Patent and Trademark Office to prevail. If it is to benefit Joy Tea, it will require the United States Patent and Trademark Office (USPTO) to devote resources to reviewing applied trademarks that may never be registered. It may also force the agency to constantly monitor the legal situation in various fields.

In summary, Joy Tea and its consultants should be generously “played well”. If Joy Tea prevails, it will be a dramatic before and after in terms of cannabis trademarks.The marijuana company will be ready and begin preparing to submit documents that may soon be called “marijuana” Happy tea application. just in case.

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