MarkIt to Market - March 2019: What’s the Answer: Does the 2018 Farm Bill Create a Path for Federal Trademark Registration of CBD Products?

Sterne, Kessler, Goldstein & Fox P.L.L.C.

Consumer products containing cannabidiol (CBD) are part of a growing market segment that—legal or not—is booming. Because cannabis is largely viewed as a commodity, branding and intellectual property in this space are tremendously important. Indeed, many players are already in the hunt to become national household names.

In brief, federal trademark registration for hemp-derived CBD products will depend on how the Food & Drug Administration (FDA) and Department of Agriculture (USDA) decide to regulate CBD and CBD-containing products. While the 2018 Farm Bill removed “hemp” from Schedule I of the Controlled Substance Act, the USDA has yet to promulgate regulations or approve plans for legal cultivation. And, to date, the FDA has taken the position that even lawfully cultivated CBD-containing consumer products would be subject to FDA regulation.

Several lawmakers, state and federal, are putting pressure on these agencies to solidify their positions soon and create a pathway for legal CBD. Thus, while federal trademarks for hemp-derived CBD products remain largely subject to the same limitations as before, what is “lawful under federal law” may soon change. In the meantime, whether for purposes of competition or valuation or both, protecting a cannabis brand starts with creating an intellectual property strategy that can work around some of these unique legal obstacles, including seeking protection for differentiating aspects of the product and brand image through patent and copyright filings.

For more information on protecting cannabis-related IP, please visit our website here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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