Can CBD Business Secure Federal Trademark Defense?

With the growing popularity of hemp-derived cannabidiol (hemp CBD) items in e-commerce, the U.S. Patent and Hallmark Workplace (USPTO) has actually seen a considerable increase of hallmark applications utilized in association with CBD items. Nevertheless, a number of these applications have actually been rejected by the USPTO. This short article briefly addresses the reasons for these rejections and discusses the hallmark securities presently offered to the industry.

To protect federal trademark registration, a mark’s use in commerce must be legal under federal law.

Although the Agricultural Enhancement Act of 2018 (the 2018 Farm Costs) legalized the production of hemp and hemp derivatives, consisting of hemp CBD, by removing hemp from the Controlled Substances Act’s definition of marijuana, the new law did not legalize the production of hemp CBD products. Rather, the 2018 Farm Expense specifically maintained the FDA’s authority to regulate these products under the Food, Drug and Cosmetic Act ( FDCA).

As I have actually gone over in this column ( here and here), the FDA takes the company position that it is illegal to offer and market in commerce CBD food and dietary supplements, pursuant to the FDCA and the Drug Exclusion Guideline Specifically, the FDA argues that since CBD was approved and investigated as a drug active ingredient prior to it was offered and marketed as a food or a dietary supplement, these items may not be lawfully introduced in commerce. The USPTO, which delays to the FDA’s position, opines that “registration of marks for foods, beverages, dietary supplements, or family pet deals with including CBD will still be refused as unlawful under the FDCA, even if obtained from hemp.”

Cosmetics including hemp CBD, nevertheless, are in a more uncertain area, as the FDA has actually suggested that the sale and marketing of these products may be acceptable. In assistance launched on its site, the FDA provides that this classification of product is legal so long as they are not adulterated, mislabeled, or intended to impact the structure or function of the body, or to detect, cure, alleviate, treat, or avoid disease ( i.e., intended as a drug).

For that reason, when getting federal hallmark defense, hemp CBD companies need to be really clear about the kind of cosmetic product they are selling and wishing to safeguard. While a hemp CBD cosmetic product in Class 003 (soaps, perfumery, essential oils, cosmetics, hair lotions, and dentifrices) might be appropriate and eligible for security, a hemp CBD salve planned to alleviate muscle discomfort in Class 005 (pharmaceuticals and other preparations for medical or veterinary purposes) won’t likely certify.

So how can hemp CBD companies protect their brands when federal trademark defense is unavailable?

One choice is to protect registration for supplementary items or services that do not violate federal law. If a service makes a hemp CBD beverage and produces and sells a non-CBD-infused variation of that drink, the company may possibly secure a federal trademark registration that will cover the non-CBD-infused drink.

Another strategy is to obtain a state trademark registration in a state where the sale of hemp CBD items is permitted. Even though state hallmark defense is geographically limited to the state of the registration, state hallmarks tend to offer more protection and legal solutions than typical law rights.

So, till the FDA reviews its policy on the sale and marketing of hemp CBD items, particularly foods and dietary supplements, the market will need to depend on resourcefulness and hallmark attorneys well-versed in hemp and CBD law to secure their brands.


Nathalie Bougenies practices in the Portland workplace of Harris Bricken and was called a “2019 Increasing Star” by Super Lawyers Magazine, an honor bestowed on only 2.5%of eligible Oregon lawyers. Nathalie’s practice concentrates on the regulatory framework of hemp-derived CBD (” hemp CBD”) items. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and policies surrounding hemp and hemp CBD products. She likewise recommends domestic and worldwide customers on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has actually made nationwide media looks, consisting of on NPR’s Marketplace. Nathalie is also a routine factor to her company’s Canna Law Blog Site

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