Although I'm admittedly out of the loop when it comes to the cannabis industry, I think there is a growing consensus that major change is coming. The current U.S. policy on cannabis is outdated at best, and grossly unjust, at worst. And while users of cannabis products look forward to the day that they can enjoy them without government intervention, the current movement toward decriminalization and legalization is having an impact on another segment of society: entrepreneurs and businesses.
This wave of new businesses that has already started "cropping" up with the new cannabis laws in Colorado and Washington will only continue to grow if current trends in the law continue. And like businesses in other industries, they will need to protect their trademark rights.
In case you're not familiar, trademarks are the form of intellectual property that protects the brands of individuals and businesses. Trademarks are typically a word, logo, or slogan that is used in connection with the advertisement and sale of goods and/or services. They are actually something you come across every day. Some very common trademarks include the names MCDONALD'S, CALVIN KLEIN, APPLE, and MAZDA. You are probably also familiar with the Starbucks logo, or the JUST DO IT slogan for Nike.
Trademarks are important for a business, because they are the embodiment of the brand. They also allow businesses to build goodwill with their customers. When their customers have positive experiences, they begin to associate those experiences with the brand and its trademarks. Trademarks also help a business to differentiate between its products and services, and those of its competitors. For these reasons, a trademark is one of the most valuable assets that a business will own. But right now, it's difficult for cannabis-related businesses to get the strongest trademark protection available: a federal trademark registration from the U.S. Patent & Trademark Office.
In order to obtain a federal trademark registration in the U.S., the Trademark Office requires a showing of the lawful use of the mark in commerce. So the USPTO will frequently refuse registration for many cannabis-related trademarks on the basis that the applied-for mark is being used in connection with goods or services that violate the Controlled Substances Act. And because the USPTO is a federal agency, that policy is not going to change until federal law changes, regardless of what the 50 states decide to do individually.
Once that federal law changes, there will probably be a ton of applications filed related to the sale of cannabis and related goods. However, it should be noted that cannabis businesses can obtain federal trademark registrations for some goods and services right now. Those goods and services can be related to cannabis, as long as they do not violate the Controlled Substances Act or any other federal law.
Here are some examples of federal trademark registrations that have been allowed by the Trademark Office:
GROWHOUSE for blogs featuring information about the marijuana industry;
LEAFHEAD.COM for social networking chatrooms in the area of marijuana;
CANNACARD for business consultation in the marijuana industry; and
DOOBSTER for software for managing the ordering and delivery of marijuana in legal markets.
As you can see, a number of businesses have already started obtaining federal trademark protection for the names they use with their cannabis-related businesses. The key is that the goods and services they are providing in connection with those names are not illegal under federal law. At some point, federal law will probably change, which will likely have an impact on federal trademark registration for businesses in the cannabis industry. Until then, it is a waiting game that the cannabis industry would like to end.