A federal agency responsible for patents and trademarks says in new a memo that it is implementing updated guidelines for registering hemp products in light of the 2018 Farm Bill, which federally legalized the crop.
In an examination guide released last Thursday, the U.S. Patent and Trademark Office (USPTO) emphasized that it would not register goods and services, including controlled substances, that violate federal law. But it recognized that while marijuana remains prohibited, the agriculture legislation signed last year did remove hemp and hemp-derived products from the Controlled Substances Act (CSA).
Applications for trademarks for products that meet the definition of hemp, which cannot contain more than 0.3 percent THC on a dry weight basis, could therefore be accepted, USPTO said—with certain exceptions.
First of all, the applications must have been submitted on or after December 20, 2018, when President Donald Trump signed the Farm Bill into law. Trademark applications for hemp goods and services that were submitted prior to the signing will be rejected “due to the unlawful use or lack of bona fide intent to use in lawful commerce under the CSA.”
“Such applications did not have a valid basis to support registration at the time of filing because the goods violated federal law,” USPTO wrote. “However, because of the enactment of the 2018 Farm Bill, the goods are now potentially lawful if they are derived from ‘hemp’ (i.e., contain less than 0.3 percent THC). Therefore, the examining attorney will provide such applicants the option of amending the filing date and filing basis of the application to overcome the CSA as a ground of refusal.”
There’s another caveat. Just because hemp and its derivatives are legal, that doesn’t mean the agency will approve all trademark applications for related products; it will instead defer to the Food and Drug Administration (FDA) for applications involving hemp that’s added to the food supply, for example.
“Applicants should be aware that even if the identified goods are legal under the CSA, not all goods for CBD or hemp-derived products are lawful following the 2018 Farm Bill,” the new memo says. “Such goods may also raise lawful-use issues under the Federal Food Drug and Cosmetic Act (FDCA).”
Because FDA has said that it is presently unlawful to market hemp-derived CBD in the food supply—due to its approval as an FDA-approved drug in the form of Epidiolex and also because it hasn’t been previously introduced to the food supply—applicants seeking a trademark for such products will also likely be denied.
That could change if the FDA identifies and pursues an alternative regulatory pathway for hemp-derived CBD, which it has repeatedly said it is doing. But until then, USPTO will adhere to FDA guidance.
“The U.S. Patent & Trademark Office’s relatively quick recognition of the revised legal status of hemp and hemp-derived CBD is both commendable and encouraging,” Larry Sandell, a registered patent attorney with Mei & Mark LLP, told Marijuana Moment. “Although a clear pathway for some businesses in the CBD space to protect their branding has been confirmed, many CBD businesses are still unable to federally register their trademarks.”
Sandell recommended taking a preliminary step as the FDA determines how it will regulate CBD. He also offered an overview of intellectual property considerations for cannabis businesses in a sponsored article for Marijuana Moment last year.
“Ultimately, the best course of action for most CBD businesses seeking to secure their brands may be to join the rapidly increasing number of cannabis entrepreneurs that have filed ‘Intent to Use’ (ITU) Trademark Applications at the USPTO,” he said. “These ITUs applications serve to stake ground until the USPTO considers each cannabis-related trademark to have been legally used in commerce under (future) federal law.”
Another federal agency made a similar point about its FDA deference in post-Farm Bill updated guidance last month. The Alcohol and Tobacco Tax and Trade Bureau cited FDA policy as the reason it would not approve formulas for alcoholic beverages that contain CBD, regardless of its source.