Cannabis Brand Protection
CANNANNEW REPORT

05 July 2022 by Jeffrey C. Johnson , Dyan Finguerra-DuCharme and Andy Goldwasser Pryor Cashman LLP For so long as cannabis remains illegal at the federal level, cannabis businesses operating in full compliance with state law will not enjoy the full scope of protections as brands that are operating in legalized industries. Federal registration of trademarks is unavailable to a cannabis business, but that doesn’t mean that it cannot develop goodwill in its brand name and enforce common law trademark rights. A well thought-out, carefully executed brand development and protection plan can be a meaningful substitute for federalregistration. Below is an exploration of strategies that cannabis businesses can use to establish a brand identity that can be effectively protected today, and that might be used to build a cannabis brand that is protected at the federal level if and when cannabis is legalized. Background The Patent and Trademark Office will not register trademarks for cannabis as a commercial good, or service marks for cannabis services, e.g., cultivation, processing or distribution, unless the products meet the definition of “hemp” under federal law. The Agriculture Improvement Act of 2018 (2018 Farm Bill), Pub. L. No. 115-334, 132 Stat. 4490. The Controlled Substances Act amended the definition of “cannabis” so that “Hemp” is defined as cannabis strains producing less than 0.3% concentration of tetrahydrocannabinol and is no longer considered a Schedule 1 drug. See e.g., 7 U.S.C. § 1639o(1). Consequently, cannabis businesses are, for the most part, unable to avail themselvesof a suite of rights granted to owners of federally registered marks including: A legal presumption of ownership, validity, and enforceability of the mark The exclusive right to use the mark throughout the US for the identified goods Constructive notice of ownership of the mark The ability toprevent importation of infringing goodswith the help of the Customs and BorderProtection Federal…

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Source : Cannabis Brand Protection

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