cbd trademark

Cbd trademark

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Provides information held by the Intellectual Property Office (IPO ) on trade marks featuring CBD, within mark or specification.

Cbd trademark

Regarding cannabis, cannabidiol (CBD) is a chemical constituent of the cannabis plant that falls under the Controlled Substance Act (CSA). The CSA prohibits the manufacturing, distributing, dispensing, or processing of certain controlled substances. These controlled substances include marijuana. Based on the CSA, the U.S. Patent and Trademark Office (USPTO) has been rejecting trademark applications for CBD. Furthermore, the 2018 Farm Bill removed “hemp” from the CSA’s definition of marijuana as long as the product does not have a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis. See 2018 Farm Bill Section 297A. However, CBD products that are ingested are illegal under the Federal Food Drug and Cosmetic Act (FDCA). Accordingly, ingested products containing CBD do not have a lawful federal use.

What about states where there is a lawful use?

Previously, Smith & Hopen wrote an article detailing the challenges an Applicant faces when registering CBD trademarks. For a trademark to be registerable, the trademark must be used in commerce. Specifically, Congress has defined commerce to mean all commerce which Congress may lawfully regulate. See 15 U.S.C. §1127.

Takeaway for CBD Trademarks

However, the TTAB disagreed, explicitly stating that “[i]n any event, the point is that ‘a bona fide intent to use the mark in commerce is a statutory requirement of a valid intent-to-use trademark application” and that “the intent must be to use the mark in lawful commerce” on the filing date of the application.

Cbd trademark

The USPTO has followed the FDA’s guidance and is currently denying trademark applications under Sections 1 and 45 of the Lanham Act, which requires lawful interstate commerce to qualify for federal trademark registration.

Unfortunately, while these oils have not specifically been subject to clinical trials like CBD-isolate, they are still subject to the FDCA’s rule and generally regarded as illegal to sell as drugs or foods on the federal level. CBG and other cannabinoids are not “generally recognized as safe” and therefore cannot be lawfully sold in interstate commerce (a requirement for registering a trademark).

There is an important distinction that these products cannot make medical claims – otherwise, they would be treated as a drug by the FDA under the FDCA. For some products, there is a thin line between medical claims and cosmetic claims, such as claims to prevent specific skin diseases versus treating generally “dry skin.” Each claim should be carefully reviewed by an attorney to assess the impact on a trademark application before applying.

The demand for cannabidiol, or CBD, has skyrocketed in the last few years and with it, a huge boom in CBD brands. However, there are still significant challenges to registering CBD brands with the United States Patent and Trademark Office.

On June 25, 2018, the U.S. Food and Drug Administration (FDA) approved Epidiolex, a prescription formula containing CBD used for the treatment of two rare forms of epilepsy. Under the FDCA, any product intended to have a therapeutic or medical use and any product (other than a food) that is intended to affect the structure or function of the body of humans or animals is a drug. An unapproved new drug cannot be distributed or sold in interstate commerce unless it is the subject of an FDA-approved new drug application (NDA) or abbreviated new drug application (ANDA).

The FDA has further clarified that the inclusion of CBD into foods, drinks, or products that make medical claims are in violation of the FDCA and have taken actions against the sellers of the products. However, despite the FDA’s actions, there are thousands of growing CBD brands and the marketplace is prime for trademark confusion.

CBD companies know that a registered trademark is a huge benefit but many encounter common issues when applying for a federal registration. The law (and the interpretation of it) is always in flux, but here are some tips when registering your CBD (and other cannabinoids or hemp-derived) products.