In 2018, the US saw a significant shift in legislation surrounding cannabis, as Congress passed the Agricultural Improvement Act, commonly referred to as the “2018 Farm Bill”. The Act led to the reclassification of hemp — described as Cannabis sativa L. and its derivatives exhibiting delta-9-tetrahydrocannabinol (THC) concentration levels not exceeding 0.3% on a dry weight basis — removing it from being considered as marijuana under the Controlled Substances Act (CSA).
As of 2024, with 38 states having legalized marijuana for medicinal purposes and 24 states permitting recreational use, the cannabis market has experienced an upswing. Consequently, an increasing variety of cannabis product offerings are hitting the market, propelling the need for brand awareness and protection. And yet, the current federal landscape presents myriad pitfalls that necessitate circumvention for effective brand protection.
A topic gathering much attention, federal legalization of marijuana remains in a state of flux. Given its current illegal status at the federal level, marijuana is considered a Schedule I substance under the CSA. Due to this classification, the United States Patent and Trademark Office (USPTO) refrains from issuing trademark registrations for goods and services directly associated with marijuana. Eligibility for federal trademark registration under the Lanham Act – the primary federal trademark statute – requires “use in commerce,” which translates to commerce that Congress can lawfully regulate and control. To date, the USPTO and several courts have interpreted the Lanham Act as allowing trademark registrations only in instances of lawful use in commerce. Thus, any activities deemed illicit under the CSA – manufacture, distribution, possession, and sale of marijuana – inherently preclude the establishment of federal trademark priority rights.
In-depth insights on the challenges encompassing trademarks within the evolving cannabis market can be found here.