In a recent Cannabis Business Executive article, associate Jacob Golan and partners Jonathan Hyman and Jonathan Menkes, both of whom co-chair Knobbe Martens’ CBD & legal cannabis practice, explore the potential impacts of the Drug Enforcement Administration (DEA)’s proposed rulemaking to reschedule marijuana from a Schedule I to Schedule III substance under the Controlled Substance Act (CSA).
Golan, Hyman and Menkes examine how this rescheduling could affect practices at the U.S. Patent and Trademark Office (USPTO) related to trademarking cannabis products. The authors write, “The U.S. Patent and Trademark Office has historically refused to register trademarks for cannabis goods or services on the ground that lawful use in commerce is required for trademark registration.” While recreational and medicinal cannabis have been legalized in certain states, they note this “does not impact the USPTO’s current trademark examination standards, which are derived from federal law.”
The authors offer possible scenarios for the USPTO’s response to a rescheduling of marijuana to Schedule III. This includes whether the USPTO would allow trademark registration applications previously barred under the CSA, or whether “the USPTO might maintain the status quo and continue citing the CSA as a bar to trademark registration, but allow limited exceptions for products compliant with the new lower schedule.”
In light of this development, Golan, Hyman and Menkes recommend that cannabis brand owners “must stay informed of the shifting legal conditions and prepare to act swiftly once the reclassification takes full effect.” In addition to trademark registration considerations, the authors encourage brand owners to think about “other forms of intellectual property protection, such as copyright protection and state trademark filings, to ensure that a company’s brands and proprietary content are being protected.”
Read the full article here.
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