In 2018, Congress passed the Agricultural Improvement Act, also known as the “2018 Farm Bill.” This legislation removed hemp, defined as cannabis (Cannabis sativa L.) and its derivatives containing delta-9-tetrahydrocannabinol (THC) concentration levels not exceeding 0.3% on a dry weight basis, from being classified as marijuana under the Controlled Substances Act (CSA). As of February 2024, 38 states have legalized marijuana for medical use and 24 states have legalized recreational use. As the cannabis market continues to grow, more cannabis product offerings enter the market, increasing the need for brand awareness and protection. However, because of the current federal landscape, there are numerous pitfalls that need to be avoided to protect brands.
Even though the federal legalization of marijuana is a hot topic for discussion, marijuana is currently illegal at the federal level and remains a Schedule I substance under the CSA. As a Schedule I substance, the United States Patent and Trademark Office (USPTO) will not issue trademark registrations for goods and services directly related to marijuana. To be eligible for federal trademark registration from the USPTO, the primary federal trademark statute, known as the Lanham Act, requires “use in commerce,” which is defined as commerce that can be lawfully regulated and controlled by Congress. The Lanham Act has been interpreted by the USPTO and some courts to only allow for lawful use in commerce. Because the CSA federally prohibits the manufacture, distribution, possession and sale of marijuana, any such use is unlawful use in commerce, and federal trademark priority rights cannot be established.
