The explosion of the cannabis industry nationwide has led to an increase in marijuana-related trademark registration attempts, many of which have been met with stone(d) silence and refusal by the Trademark Trial and Appeals Board (“TTAB”). Despite legalization in many states, marijuana is still classified as an illegal substance under the federal Controlled Substance Act (CSA). Tying the court’s hands is precedent interpreting the word “commerce” as used in the Lanham Act to mean "lawful commerce." Therefore, because cannabis is still illegal under federal law, federal trademark law cannot recognize the tide of state legalization.
The "Ultra Trimmer" Case
The prohibition against trademark registrations for cannabis-related products also extends to paraphernalia for their use, as two recent TTAB cases show. Refusal of the mark "Ultra Trimmer" for "agricultural machines, namely, a trimming machine for trimming leaves, plants, flowers and buds" was affirmed by the TTAB. Although the description of the goods at issue did not refer to cannabis, the Examining Attorney dug a little deeper and discovered that based on the applicant’s specimen of use and website, the Ultra Trimmer was illegal drug paraphernalia under Section 863 of the CSA, a fact the applicant did not dispute.
Rejection of the Marks "Powered by JuJu" and "JuJu Joints"
The TTAB also affirmed refusal of registration for the marks “Powered by JuJu” and “JuJu Joints” essentially on the same grounds as the Ultra Trimmer refusal. However, in this case the applicant did not try to use a smoke screen in its description like the “Ultra Trimmer” applicant. “Powered by JuJu” was an intent-to-use trademark application for “smokeless cannabis vaporizing apparatus, namely, oral vaporizers for smoking purposes; vaporizing cannabis delivery device, namely, oral vaporizers for smoking purposes”, and JuJu Joints was a mark in use for “smokeless marijuana or cannabis vaporizer apparatus, namely, oral vaporizers for smokers; vaporizing marijuana or cannabis delivery device, namely, oral vaporizers for smoking purposes.”
The applicant ignored the aforementioned precedent regarding “lawful commerce” and argued that the goods are sold in legal commerce because they are sold in states where cannabis is legal, which the TTAB rejected. Not content to see its trademark dreams go up in smoke, the applicant has appealed to the Federal Circuit.
The Silver Lining...
However, budding cannabis entrepreneurs should take heart: if your weed-related business involves a service or a product that is not in and of itself illegal, you may be able to secure trademark registrations after all, as the following standard work mark examples demonstrate:
- CANNATRAC®, for “business consultation in the medical and recreational marijuana industry”;
- HIGH CBD VEDA CHEWS®, for “printed publications, namely, brochures, informational sheets and teaching materials in the field of medical marijuana and high CBD products”;
- GANJA GIRL® and GANJAGEAR® for T-shirts, which are incontestable marks owned by a Creative Vision Legal retail fashion client.