Dude, Where's My Marijuana Trademark?

Great companies have great brands, and this is true for great cannabis businesses, too.

As cannabis businesses compete for customers, communicating their products’ quality and value becomes key. Marijuana companies that understand the need to differentiate their business and products from those of their competitors need to know what they can do to enhance and protect their brands.

To greatly simplify, the goal of branding is to efficiently communicate something about a given product. Maybe a company’s cannabis products or strains are trendy. Maybe they’re highly potent. Maybe they’re cheap as dirt. The point is that these companies want to tell customers that products with their brand name will consistently offer whatever it is that the company is trying to provide. Most cannabis companies want consumers to know what they offer simply by seeing their brand name on retail shelves. In addition to wanting brand recognition, no business wants other businesses using its brand name, especially in a way that could damage its reputation or steal valuable business.

Enter the developing power of cannabis trademarks. Though the United States Patent and Trademark Office (USPTO) will not register cannabis product trademarks due to their federally illegal and “scandalous” nature, many state governments will register them. A state-registered cannabis trademark does two things — it provides notice to others in the state of registration that the mark is being claimed, and it often offers greater protection for cannabis brands in the registered state than the common law.

It is important to note that even certain federal cannabis-related trademarks are sometimes possible. Though you will not be able to register the marijuana strain name of their dried marijuana flower with the USPTO, you could potentially register that strain name for an auxiliary clothing line or for cookies not infused with cannabis.

Just as should be done with non-cannabis trade names, it is critical to do a trademark search before you attempt to register a cannabis trademark with a state trademark office. This search needs to be done to make sure that nobody else has already claimed the trademark you seek and to make sure that the brand name you are contemplating using does not infringe on someone else’s trademark. Cannabis businesses are in no way immune from being sued for trademark infringement merely because of the federal Controlled Substances Act — just ask the Hershey Company.

Once a marijuana business secures its state trademark, it should monitor the mark for infringers and should enforce it sufficiently to maintain its rights. The marijuana business should also educate itself about the complex rules and restrictions on placement and content of advertising, the claims that can be made about a given product, and how to target product advertising accordingly.

The marijuana industry is becoming more legitimate and is made up of an increasing percentage of sophisticated businesses. These businesses thrive when they develop unique and recognizable brands. Great companies have great brands, and this is true for great cannabis businesses, too.

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Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.

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