Delta-8 THC Offers a Path to Trademark Protection

Delta-8 THC Offers a Path to Trademark Protection
CANNANNEW REPORT

John Heinbockel Seyfarth Shaw LLP A recent federal appeals court decision has shed light on the legal status of delta-8 tetrahydrocannabinol (“delta-8 THC”) and its implications for cannabis brand owners.  The United States Court of Appeals for the Ninth Circuit held that delta-8 THC falls squarely within the definition of “hemp” under the 2018 Farm Act, and is therefore lawful, despite its psychoactive properties.  Cannabis brands have long struggled to obtain adequate federal trademark protection because the Lanham Act only extends trademark protection to goods that are lawfully in U.S. commerce.  The Court’s decision potentially clears a new path for cannabis brand owners to obtain federal trademark protection. In AK Futures LLC V. Boyd Street Distro, LLC, the Ninth Circuit affirmed the grant of a preliminary injunction against a defendant accused of selling counterfeit e-cigarette and vaping products containing delta-8 THC.  AK Futures LLC, a manufacturer of e-cigarette and vaping products, brought suit for trademark and copyright infringement against Boyd Street Distro, LLC, a Los Angeles smoke products wholesaler.  AK Futures produces e-cigarette and vaping products containing delta-8 THC under the brand CAKE.  Boyd Street apparently sold counterfeit versions that included both AK Futures’ CAKE trademark and its copyrighted logo.  AK Futures brought suit seeking an injunction, which the District Court granted. Boyd Street appealed, arguing that the CAKE marks were not protectable trademarks because delta-8 THC is illegal under federal law.  The United States Court of Appeals for the Ninth Circuit disagreed. The Court decisively held that the delta-8 THC products are not prohibited by federal law and therefore may support a valid trademark.  The 2018 Farm Act amended the definition of “hemp” in the Controlled Substances Act to exempt cannabis plants and “all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers” with a delta-9 THC concentration of…

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