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Marijuna Trademarks Still Not Permitted Under Federal Law

Posted Wednesday, July 20, 2016 by Daniel Mills

Being based in a state that allows medical and recreational marijuana use, I have received many inquiries about obtaining federal trademark protection for marijuana related products and services. Under trademark law, a trademark must be associated with goods or services with lawful commercial use. Because trademark law is federal, the lawfulness standard means that the use has to comply with federal law, not state law. In other words, it does not matter that Washington allows marijuana (or any other state). Because it is against federal law, it is unlawful for trademark purposes.

I have heard many crafty suggestions on how to skirt this issue from shop owners, growers, and entrepreneurial investors. However, the reality is that you cannot get a federal trademark if there is a connection with actual marijuana. The latest example of this came down on Monday July 18, 2016 with when the Trademark Trial and Appeal Board (TTAB) upheld a refusal on an application for Herbal Access in association with "retail store services featuring herbs”. You can read the decision here.

The applicant unsuccessfully attempted to argue that because they sold “herbs” which is legal, the application should be allowed. The TTAB held that the evidence in the application and on the applicant’s website clearly indicates that they sell marijuana and therefore is a violation of the Controlled Substance Act, and therefore, a federal violation that bans trademark registration.

This decision makes it clear to me, that no matter how clever, an applicant may try to be, if there is a connection to marijuana, there will be a refusal. I don’t think this attempt was particularly clever, nor was it argued that strongly. However, if you want to connect a trademark to a federally illegal good or service, it won’t happen. In other words, no one is that clever!

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