Trademarking Cannabis – Hurdles and Challenges You Can Expect

Macro detail of cannabis buds (maui skunk strain) on a glass jar

In business, there are few things more important than brand loyalty. That’s how you get recognition and revenue from your core customer group – and this absolutely applies to trademarking cannabis. Whenever they see a logo, motto, slogan or advertisement, they will immediately reminisce about the excellent experience they had with your product.

It’s always like this, regardless of the service provided. Such a system is in force, regardless if it’s a car wash business, a bookstore, a restaurant or even a concert venue. The same, of course, goes for cannabis businesses. However, there are some significant bumps in the road to putting a label on your MMJ containers. Why?

The key to having a successful brand lies in the fact that you have to have a federal trademark registration. For marijuana, things work a lot different than with regular brands. This is because the legal status of marijuana is a state-regulated issue, whereas trademarking falls completely under the category of federal law.

The clash between these two legislative layers can have serious repercussions on the way cannabis entrepreneurs do business. This influences everything from rent and taxes, all the way to the medial details like custom cannabis packaging, medical marijuana containers and other aspects of a good business. Let’s take a look at how you can secure your brand.

What is a trademark anyway?

A trademark is the written identification of the source of services or goods. Things that can fall under a registered trademark aren’t just words and logos. There can also be slogans, color hues, sounds and unique shapes that comprise the design of the product. Let’s take a few examples from the cannabis industry:

  • KIVA – This is a trademark for a brand of medical marijuana chocolate bars and is recognized as a leader on the edibles market
  • SELL SMARTER – This is a slogan that is exclusively used by financial services used by cannabis dispensary owners and retailers alike

A good marijuana entrepreneur recognizes the need to differentiate their services and products from another competing brand. Connecting your supreme quality goods with a color, slogan or word will allow you to increase your revenue and be protected against any theft.

To get branded, you have to file a request for federal trademark registration. However, if you’re a marijuana entrepreneur, you won’t be able to have your own custom cannabis packaging that soon. Why is this the case? Let’s take a look at the legal side to look at some possible solutions.

Federal trademark protection – why not?

30 states now have some level of cannabis legalization. 21 states have legalized medicinal marijuana, whereas 9 have laws that permit the recreational sale, production, and use of cannabis. However, despite every one of the 50 US states (plus Puerto Rico) having autonomy in their own legislation, they are still subject to many federal laws. Amongst these laws is the one which dictates federal trademark registration, protection, and maintenance.

According to the controlled substances act (CSA), marijuana is still considered a Schedule I drug, falling into a category with substances that are much more dangerous for use.

Despite the lack of logic in this piece of legislature, it is illegal to sell, offer for sale or use any “interstate commerce” to transport, sell or purchase drug paraphernalia. What is exactly drug paraphernalia? Let’s cast a glance at the CSA:

“Any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under [the CSA].”

Whether it’s dispensary packaging, pop top bottles or even bongs, you can’t get a legal clearance to sell either strains and marijuana-infused products. This also applies to products that are considered tailor-made for the consumption of marijuana, regardless if it’s for a medical or recreational purpose. But how can you accomplish worthy protection of your brand then? The key lies in bypassing the federal level and the way you present your brand.

Finding a way – looking at the state level

Even though it’s not possible to get federal trademark protection, it is possible to get trademarked on a state level. No, it’s not nearly as effective, and it doesn’t give you the same benefits. However, it’s easier to get and serves as a gateway towards full brand recognition.

For instance, if you run a cannabis-related business in Washington, you can file for a state-received trademark license. This means that you have your name/color/sound/slogan and everything else protected within state borders. Now, a logical question arises – what happens in case of expansion?

If you and your associates wish to expand, you only have to file for a state trademark protection license in the state you wish to move your brand to. This is possible in each of the 30 states with marijuana legalized in some form.

However, be wary about marketing and packaging laws. If you wish to move your brand, explore the laws about marketing restrictions in the region you wish to move to. Some of these laws are pretty extensive, relating to everything from custom cannabis packaging to simple pop top containers for a gram of cannabis. Also, there is something you can do at a federal level, as well.

Exploiting loopholes in federal law

Federal registration is not impossible. It’s just hard. For what reason? To obtain registration for your brand, you only have to apply for goods and services that the CSA doesn’t deem illegal.

For instance, your medical marijuana business can register a strain name, but only for cookies and food devoid of cannabis, promotional content such as flyers, T-shirts, and even publications. This is a lot of possible products to work with, so it’s worth a try. The US Trademark Office regularly approves trademarking for cannabis-related businesses that don’t necessarily refer to paraphernalia or cannabis itself. Here are some existing examples:

  • MEDICAL JANE – a website that posts information and news related to medical marijuana and general health
  • DR. GANJA – medical marijuana referral services
  • THE MARIJUANA COMPANY – marijuana-related clothing and items
  • The three trademarks above have skillfully used a loophole and managed to establish themselves as a brand, without breaking the law. But the following applications have been rejected:
  • MAUI WAUI – a name of a Hawaiian strain
  • PRIMOR – also a strain name
  • JUJU JOINTS – vaporizers for smokeless marijuana consumption

Due to our immediate contact with the market, we at Green Rush Packaging have always strived to be recognized on a state level, first and foremost. Although our products aren’t branded on a federal level, our name is – in terms of it being on clothing items and other objects.

 

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