Marijuana, CBD, and Trademarks
The title to Bob Dylan’s 1963 hit, “The Times They Are A-Changin,” could not ring more true today than it does in the hemp and marijuana industries. The expansion of marijuana legalization at the state level is accompanied by efforts—so far unsuccessful—to legalize at the federal level. And with the passage of the 2018 Farm Bill earlier this year, “hemp” was removed from the controlled substances list—making it legal at the federal level and, therefore, nationwide.
What does this mean for Legal Branding™
If you are in the biz, you know that the U.S. Patent and Trademark Office does not allow trademark protection for goods and services that are unlawful. This meant that marijuana and hemp business owners had to work to find creative routes to protect their brands. “Why would they even bother if illegal substances can’t be legally branded,” you ask?
Thinking Today About What’s Good for Tomorrow
Because the writing was on the wall, and today’s successful entrepreneur doesn’t think about just today. Consequently, Legal Branding and trademarks aren’t just about what can be registered today. Success means anticipating and planning for tomorrow, particularly in the legal arena.
As more and more states legalize marijuana, it sets up a tension between state and federal law. While you can legally (and literally) grow your marijuana business, and you can brand it locally, you can’t protect your brand at the federal level because it continues to be illegal. That’s now.
And, this is then … what happens when Congressional leaders pay attention to Dylan’s lyrics: come senators, congressmen, please heed the call; don’t stand in the doorway, don’t block up the hall, and marijuana use is legal? Those who are thinking ahead have found creative workarounds to tangential registration with the USPTO and other intellectual protection strategies. While this provides less than ideal protection, it puts these business owners in a position to expand on their Legal Branding when Congress stops bogarting and legalizes for all.
This forward thinking on Legal Branding is exactly what has some in the hemp industry nicely positioned. The 2018 Farm Bill removed “hemp” (any part of the plant with a tetrahydrocannabinol (THC) level below .3%) from the controlled substance list. That means, you can now legally register your cannabidiol (CBD) products … and why you have noticed CBD oil, topicals, edibles and other consumables popping up in local shops and on your screen.
In case you are wondering what exactly CBD is, it is produced from hemp and is a non-psychotropic product of the cannabis plant. Because of the 2018 Farm Bill provisions, it is legal for use in every state in the U.S. CBD products currently on the rapidly growing market include food and drink (consumables or edibles) and pain relief and skin care products (topicals). The CBD market is estimated to increase 700% by 2020.
The Time is Now
If you are in the hemp and CBD industry, if you haven’t already taken action to protect your brand, now is the time to act … assuming someone else hasn’t jumped in on your turf already.
If you are in the marijuana industry in a state in which it is legal, straight on registration for this budding industry is not allowed at the federal level, but there are certain recommended steps you can take. Registering at the state level is one way to start. Creative registration at the federal level may also be possible. Assuming it will eventually be legalized, you will be well-positioned to move quickly to protect your brand.
And if you are in both industries, it pays to think about your CBD and hemp-related Legal Branding with a view toward using the same or similar branding with your cannabis products, once legalized. Trademark holders have protection not only over the products they currently offer, but also what they are reasonably likely to offer in the future under the “zone of natural expansion” principle. It’s a fuzzy way of staking your claim on something that doesn’t exist yet, and if you work with a strategically creative Legal Branding team (including lawyer and design), you can position yourself in a very sweet spot.
Laws constantly change and evolve. No matter which business you are in, these changes will impact you. Instead of letting them knock you sideways, use them to your advantage. I can help you do what’s right for your business today and prepare a Legal Branding foundation for tomorrow.
Dylan’s lyrics also caution that you’d “… better start swimming or you’ll sink like a stone.” Suit up. Let’s talk.
Think About This Before We Talk:
✓ What are your current products and services?
✓ Have you already taken steps to protect your brand?
✓ If yes, what have you done?
✓ What is your vision for the future?
✓ How do you think I can best help you realize your vision?