Trademark Protection for CBD Supplements


Published Via JD Supra Platform There are over 2,000 pending federal trademark applications for supplements containing cannabidiol (“CBD”). None of these applications is likely to proceed to registration under current law. Since the game changing Trademark Trial and Appeal Board decision last summer in In re Stanley Brothers Social Enterprises, LLC, 2020 U.S.P.Q.2d 10658 (TTAB 2020) refusing federal trademark registration to nutritional and dietary supplements containing CBD, intellectual property attorneys who advise supplement manufacturers have carefully considered alternative paths for brand protection. The Agricultural Improvements Act of 2018 (“the Farm Bill”) initially appeared to pave the way for new lawful uses of hemp derivatives by removing them from the Controlled Substances Act (if exhibiting a delta-9 THC concentration of not more than 0.3 percent on a dry-weight basis). However, the road to trademark registration for certain consumer products including hemp extracts was quickly hampered by a second obstacle – the Food and Drug Administration’s regulation of food and drugs. The United States Patent and Trademark Office (“USPTO”) has long maintained that to qualify for a federal trademark registration “use of a mark in commerce must be ‘lawful.’” This seemingly straightforward policy statement merely begs the question of lawfulness of supplements more generally, which then brings us to this second obstacle — the application of the federal Food Drug & Cosmetics Act (“FDCA”). The FDA has deemed CBD an active ingredient in an approved drug, namely Epidiolex® (cannabidiol) to treat epilepsy. Under the FDCA this approval renders CBD a “drug” that when added to a “food” gives rise to a violation of federal law — even if the CBD ingredient was undisputedly lawful as derived from industrial hemp under the Farm Bill’s definition. Many with expertise in the field believe the USPTO’s decision may paint with too broad a brush in treating all CBD as…

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Source : Trademark Protection for CBD Supplements

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