COMING SOON™: HEMP FEDERAL TRADEMARK REGISTRATION

In December 2018, Congress passed and the President signed the 2018 Farm Bill which legalizes hemp. Hemp is a variety of the Cannabis sativa plant containing high amounts of non-psychoactive cannabidiol (“CBD”) and low amounts of psychoactive tetrahydrocannabinol (“THC”). You won’t get high off hemp.

Since then, entrepreneurs are rushing to apply for trademarks for hemp products and services. The bulk of the applications remain pending before the United States Patent and Trademark Office (“USPTO”). I expect some to be eventually registered after further guidance from other federal agencies such as the Food and Drug Administration (“FDA”).

Hemp Was Illegal

Hemp was once a big cash crop for Kentucky. The sale of hemp was taxed by the 1937 Marijuana Tax Act, which was repealed and superseded by the Controlled Substances Act of 1970. Hemp was classified as a schedule I drug. A schedule I drug has a high potential for abuse and has no currently accepted medical use.

Unlawful Use Refusals

An applicant must show that he or she is using a trademark in commerce. The “use in commerce” requirement of The Lanham Act is derived from the Commerce Clause of the United States Constitution: “The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The USPTO’s position is that the “use in commerce” must be “lawful.”

Hemp being illegal was a problem for trademark applicants. If the use is unlawful, then the USPTO will refuse the register the trademark.

Hemp Is Legal Again

Unlawful use refusals for hemp may be a thing of the past. The 2018 Farm Bill defines hemp as cannabis with no more than 0.3% THC. The bill amends the Controlled Substances Act as follows: “[t]he term ‘[marijuana]’ does not include … hemp.”

Stay tuned for updates on this developing area of law.

• Anwar “Joe” Malik, Of Counsel

This post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from The Winters Law Group LLC, or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.