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Federal Trademarks Still Difficult to Obtain for Cannabis Companies

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Registering a federal trademark is still difficult for cannabis companies, according to intellectual property attorneys who work with the industry.

Ed Weisz, a partner at Cozen O’Connor in New York, said the federal patent law allows for patents to be placed on plants. So different strains of cannabis can be registered with the U.S. Patent and Trademark Office. He explained getting a strain of cannabis patented does not present any unique problems other than the issues every kind of product goes through in the middle of the patent application process.

“The trademark space is trickier than the patent space,” Weisz explained. “Primarily that’s due to the fact that patent laws allow people to apply for and obtain plant patents. You can in effect obtain patents on a new cannabis strain or something.”

He explained federal law still prohibits people from obtaining a trademark for “illegal activities.”

“Because of that and because of the federal law still considers cannabis to be illegal activity and illegal products, you have a situation where it’s approved at certain state levels but it’s still not approved at the federal level,” Weisz said.

However, Nuzayra Haque, the principal attorney at NH Legal in Los Angeles, said when she started working on cannabis-related IP issues, the attorneys at the USPTO would not even have a conversation about trademarking a cannabis company.

She said when she first started working with cannabis companies she had to submit several trademark applications with the USPTO and work with the examining attorneys to figure out what parts of the cannabis business could and could not be trademarked.

“It was over time that we had to work with the USPTO and get them comfortable with the idea that cannabis businesses are not shady, dodgy businesses like they used to be,” Haque said.

She said over the past three years the examining attorneys have seen it as a burgeoning industry and are a lot more comfortable to grant companies federal trademark registration. She said it took several conversations and legal briefings to get examining attorneys to understand that not every part of the cannabis business has to do with selling.

“It has been a struggle on both ends,” she explained. “Convincing the clients that they need to get IP protection if they want to be taken seriously as a brand and on the other hand it was working out with the USPTO on how can we get these registrations.”

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Published: February 08, 2019

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