Hemp and hemp-derived CBD were previously classified as Schedule I controlled substances under the Controlled Substances Act (CSA) of 1972. The Agriculture Improvement Act of 2018 ("2018 Farm Bill") decriminalized hemp and hemp-derived CBD and opened the doors for brand protection at the United States Patent & Trademark Office (USPTO).
Applications filed on or after December 20, 2018 that identify goods encompassing cannabis or CBD, the 2018 Farm Bill potentially removes the CSA as a ground for refusal of registration, but only if the goods are derived from "hemp." Cannabis and CBD derived from marijuana (i.e., Cannabis sativa L. with more than 0.3% THC on a dry-weight basis) still violate federal law, and applications encompassing such goods will be refused registration regardless of the filing date. If an applicant's goods are derived from "hemp" as defined in the 2018 Farm Bill, the identification of goods must specify that they contain less than 0.3% THC. Thus, the scope of the resulting registration will be limited to goods compliant with federal law.
The USPTO has directly addressed the topic of brand protection and produced a guide on how to amend trademark applications to comply with federal law. The guide is titled Examination Guide 1-19: The Examination of Marks for Cannabis and Cannabis-Related Goods and Services after Enactment of the 2018 Farm Bill.
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The information in this blog is accurate to the best of my knowledge. This blog is not a substitute for consultation with a licensed insurance broker to address the particular facts and circumstances of your individual risks.