Lanham Act Preemption of State Law Where Cannabis Trademarks Are At Issue

Source: JD Supra As cannabis products become legal in more and more states, commercial interest grows in protecting the trademarks associated with those products.  The United States Patent and Trademark Office has maintained its refusal to register trademarks for most cannabis-based products on the ground that use of those products is federally unlawful.  But what about state or common law rights in trademarks for cannabis products?  In a recent order denying summary judgment, the Northern District of California in Kiva Health Brands, Inc. v. Kiva Brands, Inc.  held that a party’s state and common law trademark did not confer trademark priority in a trademark infringement suit based on the federal Lanham (Trademark) Act. BACKGROUND Plaintiff Kiva Health Brands LLC (“Kiva Health”) sells health and wellness food and food supplements.  Its first KIVA-branded products were sold in 2013.  Its various KIVA trademarks were federally registered in 2014-16. Defendant Kiva Brands, Inc. (“Kiva Brands”) is a leading provider of cannabis-infused chocolates and confections.  Through its predecessors-in-interest, Kiva Brands launched its KIVA and KIVA CONFECTIONS brand in California in 2010, and expanded sales to other states in which cannabis products are legal.  Kiva Brands registered its trademarks in the State of California in 2018. About a year after learning of Kiva Brands’ use of the KIVA trademark, Kiva Health brought suit for trademark infringement, unfair competition, declaratory relief, and associated state trademark and unfair competition claims.  Kiva Brands filed counterclaims.  The parties then filed cross-motions for a preliminary injunction, which the Court decided on…

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