Branding Marijuana Extracts and Strains

Now that the Marley Family has come out with their own brand of Marijuana, says Rolling Stone Magazine, many growers and distributors want to brand their extracts and strains. Much has been written about the impossibility under current US Federal Law to obtain a US Federal Trademark for the actual bud or its progeny.   In this article by Kieran G. Doyle, the most significant take away is:

– Federal Trademarks that steer clear of the Controlled Substances Act can make it thru – (I provide a check list on how to do that in my post here) AND

– Go for State Trademark protection. After all, in the states that permit Marijiuana, a trademark can most likely be obtained.  So what are you waiting for?

California’s forms are here and

Colorado’s filing materials can be found here for example.

Although I am not a Colorado lawyer, I certainly can help you from here in Sunny California.

Maui Waui, Medical Marijuana and Trademarks

According to Jeff Spacoli in “Fast Times at Ridgemont High”, “All I need are some tasty waves, a cool buzz, and I’m fine.”  

Upated: June 2014: Hershey sues edible marijuana company

If you run a medical marijuana dispensary or a manufacture or sell vapors, edibles, pens or product for a legal dispensary, you may also want a Federal trademark to be “FINE.” (See my other post on brand protection) The problem is, the Federal government is not just giving away trademarks – the exclusive right to use a word or mark in connection with a good or service – when connected to medical marijuana.

Here are some guidelines to help you entrepreneurs out there avoid wasting your money on trademark applications without any hope of obtaining protection.

The Controlled Substances Act:

  1. Is the product or service your running the “manufacturing, distributing, dispensing, or possessing certain controlled substances, including marijuana and marijuana-based preparations”? 
  2. If yes, you probably violate the Federal Controlled Substances Act and will be rejected.  See 21 U.S.C. §§812, 841(a)(1), 844(a); see also 21 U.S.C. §802(16) (defining “[marijuana]”).
  3. Is your business focused on “sale of, offer for sale, or use any facility of interstate commerce to transport drug paraphernalia”? This includes: ingesting, inhaling, or otherwise introducing into the human body?
  4. And is the thing your selling medical marijuana?
  5. IF yes to 3 and 4, then, you probably violate the CSA too and will get rejected under 21 U.S.C. §863.

For example,

  • MAUI WAWI – REJECTED – as medical marijuana – because it is a controlled substance under Federal law.
  • MYST 5 – REJECTED – as Oral spray for absorption of medical marijuana – because a product that is inhaling a controlled substance violates Federal law.
  • PRIMORA – REJECTED – as medical marijuana – same as above.

Avoid the CSA:

  1. Your product must be lawful under Federal law – not state law – when applying for a US Trademark;
  2. If your services DO NOT involve the provision of marijuana, marijuana-based preparations, or marijuana extracts or derivatives or any other illegal controlled substances YOU ARE GOOD;
  3. If your services are merely an INFORMATION source for how to “obtain and/or grow marijuana, marijuana-based preparations, or marijuana extracts or derivatives or any other illegal controlled substances” you APPEAR TO BE GOOD;
  4. If your services involve POSSESSION or HANDLING OF, you are probably NOT GOOD to get registration.

Here a few goods and services that have achieved Federal registration:

  • IC 009. US 021 023 026 036 038. G & S: Downloadable computer software featuring a database of information regarding cannabis strains, indications and effects and cannabis dispensaries and their inventories and locations. 
  • IC 035. US 100 101 102. G & S: Providing consumer information in the field of medical marijuana dispensary inventories and locations; providing links to web sites of others featuring consumer information on medical marijuana inventories and locations; providing a web site featuring the ratings, reviews and recommendations on products and services for commercial purposes posted by users; providing consumer information regarding medical marijuana dispensaries, inventories and locations. FIRST USE: 20101024. FIRST USE IN COMMERCE: 20101024
  • IC 039. US 100 105. G & S: Providing a web site and web site links to geographic information and map images in the field of medical marijuana dispensary businesses via interactive computer networks. FIRST USE: 20101024. FIRST USE IN COMMERCE: 20101024
  • IC 042. US 100 101. G & S: Computer services, namely, creating an on-line community for registered users to participate in discussions, get feedback from their peers, form virtual communities, and engage in social networking in the field of medical marijuana; creating and maintaining blogs for others. 
  • IC 044. US 100 101. G & S: Providing health information in the field of medical marijuana, and regarding indications and effects of particular cannabis strains, and regarding medical marijuana dispensaries, inventories and locations. FIRST USE: 20101024. FIRST USE IN COMMERCE: 20101024
  • IC 042. US 100 101. G & S: Computer services, namely, providing on-line non-downloadable web-based computer software for patient documentation and history, inventory control, and inventory management for use among medical marijuana centers, dispensaries, collectives, and patients. FIRST USE: 20100100. FIRST USE IN COMMERCE: 20100100
  • IC 041. US 100 101 107. G & S: Organization and arrangement of educational and instructional seminars and conferences regarding legal, medical and political developments and societal attitudes about medical marijuana not including the provision or display of marijuana, marijuana-based preparations, or marijuana extracts or derivatives, synthetic marijuana, or other substances controlled by the Controlled Substances Act; organization and arrangement of exhibitions for educational, cultural and entertainment purposes regarding legal, medical, and political developments and societal attitudes about medical marijuana not including the provision or display of marijuana, marijuana-based preparations, or marijuana extracts or derivatives, synthetic marijuana, or other substances controlled under the Controlled Substances Act; organization and arrangement of musical exhibitions. FIRST USE: 20100222. FIRST USE IN COMMERCE: 20100222
  • IC 041. US 100 101 107. G & S: Education services, namely, providing seminars and classes in the field of medical marijuana; Entertainment, namely, live music concerts; Providing facilities for educational conventions.
  • Physician services; medical evaluation of individuals to determine whether a medical diagnosis or medical condition is present that may benefit from treatment with medical marijuana.

 

I would be happy to talk you through – or off the ledge – with regards to how best to protect your service or product that does not fall directly afoul of the CSA as well as discussing state and other approaches for what would surely end you up with a US Trademark rejection notice.  Give me a call if I can help 310-570-2399.