American lawyer in BarcelonaI spent last weekend in Barcelona attending Spannabis. Our Barcelona lawyers constantly get inquiries from serious international businesspeople wanting to start a cannabis social club or some other sort of cannabis business in Spain. And with more than 200 medical marijuana social clubs in Barcelona alone, I wanted to go there to meet with key industry players to learn more about what is going on with marijuana in Catalonia’s capital city and in the rest of Spain.

Barcelona and medical marijuana felt to me like some combination of California, Oregon, and Washington seven years ago. Namely, it feels like an unregulated, quasi-commercial gray market chalk full of “collective” non-profits and rotating patient members, unclear laws and inconsistent enforcement of those laws. For a breakdown on the current medical marijuana laws in Spain and in Barcelona, go here. This unclear and pioneer atmosphere was also in full force at Spannabis, which was in many respects just like pretty much every other marijuana trade show/expo I’ve attended in the United States: light on serious education about marijuana laws and regulations and heavy on promoting marijuana consumption and on seeking to preserve the counter-culture. But with cannabis cups and consuming events dwindling in the U.S. from increasing state marijuana regulations, I would be remiss if I did not mention how the Spannabis fairgrounds managed to maintain a steady cloud of overhanging marijuana smoke from its more than 3,000 attendees who openly and consistently consumed despite the presence of law enforcement.

Spannabis had only a single panel on the legality and rules surrounding Barcelona’s (mostly medical) marijuana social clubs and the panelist gave little detail or explanation about the law that enables cannabis clubs to operate. That panel was made up of one criminal defense attorney telling attendees about the national and local government’s conflicting policy positions on health and law enforcement and the rights of individuals to consume cannabis for medical use. Needless to say, since our cannabis lawyers represent the business side, I didn’t this panel very helpful. More importantly, this panel served as just another indication that Barcelona and Spain as a whole have just not yet really “arrived” yet as destinations for those seeking to form and operate a cannabis business fully compliant with local (in this case Barcelona), provincial (Catalonia) and federal (Spain) laws. Fortunately, our Spain lawyers mostly focus on representing ancillary cannabis businesses and CBD businesses, along with the standard fare of helping foreign companies in all industries seeking to form a business in Spain and make a go of things there.

But as many in the industry there were quick and emphatic about telling me, the cannabis scene in Barcelona and in Spain is slowing maturing and slowing getting “more legal.” As we wrote just last week, the regional Parliament of Catalonia has proposed reforms in line with a 2014 initiative advocated by Regulacion Responsible in advance of the 2014 Spain national elections. The initiative’s aim was to create a framework for the national reform of cannabis laws to permit regions like Catalonia and cities like Barcelona to set their own cannabis policies. Though the 2016 legislative initiative stalled, it has recently reemerged and anticipation is building for a revised version of this bill that would mean increased regulation for legalized marijuana businesses on a regional basis. Given the inconsistent enforcement of current laws (within both Catalonia and Spain) and the lack of meaningful or comprehensive business regulations, such reforms cannot come soon enough to better protect and give more structure to those cultivating and distributing marijuana for and to patients. Patients would also benefit from such regulation as it would increase both transparency around the sourcing of cannabis products and cannabis quality assurance standards.

Even though marijuana social clubs in Spain exist in a risk-laden gray area, it’s clear that manufacturing and distributing CBD is a popular and, more importantly, legal practice in Spain and Barcelona (in contrast to the United States). Indeed, the majority of booths on the exhibitor floor at Spannabis focused on hemp seeds (there was even a company there from Humboldt County) and CBD-based products. Manufacturing and distributing cannabis paraphernalia or equipment used for consuming, cultivating or handling are also legal and ancillary companies are alive and well in Barcelona, just like in most of the U.S. This is why foreign investors looking at Spain are mostly focusing on financing, starting, managing or assisting ancillary companies and not so much on marijuana social clubs, all of which are non-profit because of existing laws prohibiting commercial “trafficking.” The Arcview Group (well-known for angel investments in ancillary marijuana businesses) held an investor meeting in Barcelona for the first time last week.

Barcelona’s medical marijuana marketplace remains immature and risky (these were the words used by many of those with whom I spoke while I was in Spain), but it no doubt has tremendous potential. Once local governments in Spain are given the freedom (and they might soon) to take the reigns on cannabis regulation and to create a better business atmosphere for cultivators, manufacturers, and distributors, Barcelona will no doubt quickly become a major marijuana city in terms of popularity, investment, and access. The lawyers in our Barcelona office can hardly wait.

Cannabis exportsIsrael is moving toward authorizing the export of medical marijuana. Israel is an example of how advanced a market can get with a relatively small number of potential customers. With only around 23,000 patients, Israeli’s medical marijuana businesses have thrived, benefiting from the country’s open approach to research, unlike in the United States. So, how will potential Israeli exports affect markets in the United States?

Countries can regulate trade on two fronts — outgoing goods (exports) and incoming goods (imports). On the export side, countries will generally have limits or bans on the export of munitions or military items, items that have military applications, and items intended to go toward countries or individuals that the U.S. has designated under its sanctions regime. For imports, countries will generally track what is coming in for customs purposes to levy import duties and will require proof of licensure for the import of regulated goods that require licenses to possess. Israel may allow the exports, but it doesn’t mean that the United States will allow the imports. Because marijuana is still a controlled substance that is illegal to possess without permission from the DEA, medical marijuana patients in the United States likely won’t be able to import marijuana for their own use.

But for researchers, access to Israeli medical marijuana strains would be a huge boon. For years, the only marijuana researchers can use has been controlled by the National Institute on Drug Abuse at a licensed facility at the University of Mississippi. This has been a problem because NIDA’s Mississippi marijuana has often been found by researchers to be of inferior quality, and many research projects have ground to a halt after receiving all required licensing and permits because the NIDA facility simply didn’t have the type of marijuana that needed to be researched. In August, the DEA announced a new policy that would potentially expand the list of permitted facilities for the cultivation of cannabis for research. In that policy statement, the DEA used the Single Convention on Narcotics to provide it some cover for its continued limitations on cannabis growing for research. The primary limitation for those permitted by the DEA to cultivate marijuana is that they receive written permission from the DEA each time that they distribute marijuana.

The DEA continues with these limitations for a number of reasons as we have discussed here and here. But the DEA’s best arguments for its ongoing limitations are based on the U.S.’s obligations under the Single Convention. Articles 23 and 28 of the Single Convention make clear that countries that allow cultivation of cannabis for research purposes must ensure that research marijuana not be diverted to the illegal market. This is only a problem for the DEA domestically when the cultivation is in the United States, though. If the DEA licenses importers, only a limited quantity of marijuana comes into the United States, and protection against diversion from the grow operation is the problem of the exporting country.

The DEA has authorized importation before. In December 2015 it granted Catalent CTS, LLC of Missouri a registration to import “finished pharmaceutical products containing cannabis extracts in dosage form for clinical trial studies.” These imports would presumably be from GW Pharmaceuticals, which has a massive facility in the United Kingdom.

But Israel’s medical marijuana cultivators have a strong reputation around the world, and researchers will be eager to run trials with strains of cannabis they cannot get anywhere else. It will take some time for Israel to move the marijuana export allowance through its legislature (it has only been voted out of committee), but don’t be surprised if a number of U.S. based researchers start applying to the DEA for import permits and start getting their cannabis from Israel.

Barcelona lawyersOur Barcelona lawyers have lately been receiving a steady stream of calls about producing and distributing cannabidiol-based products around the world, from Spain. Cannabidiol  (CBD) is a compound found in cannabis but unlike tetrahydrocannabinol (THC), the compound in cannabis that gives users a high, CBD is non-psychoactive. Studies suggest CBD can be effective in treating epilepsy and other neuropsychiatric disorders including anxiety and schizophrenia. CBD may also be effective in treating post-traumatic stress disorder and may have anxiolytic, antipsychotic, antiemetic and anti-inflammatory properties. With so many potential benefits, it should come as no surprise that our Barcelona attorneys are so often asked about the legality of CBD oil in the European Union?” In short, it depends on what part of the cannabis plant from which the CBD oil was derived.

CBD can be extracted from marijuana plants (cannabis sativa) or from industrial hemp plants. Both are cannabis varieties but grown for a different purpose and with a different “legal personality” reflecting the legal status of extracted CBD oil in the EU. Hemp has been cultivated throughout the world for industrial and medical purposes, and for the production of useful objects such as clothing, candles, paper, and thousands of other products. Hemp oil and hemp seeds also contain many essential nutrients. In Europe and in Spain, hemp must be grown under EU regulations. Industrial hemp must contain no more than 0.2% THC on a dry weight basis. If the EU criteria are met, then a hemp producer may obtain EU certification for the product. Failure to follow protocol can lead to trouble. Local Spanish farmers producing hemp are right now facing criminal charges for crimes against public health for having not fulfilled current regulations in production. This adds uncertainty for foreign investors in finding the right provider of raw material. Medical marijuana contains high levels of THC, concentrated mainly in flowers and trichromes of the plant.

Those wishing to import CBD based products into Spain face labeling requirements. The number of CBD products available on the Spanish market has increased but most consumers are unaware of the exact amount of CBD they should take, or do not know the exact composition of the CBD oil or tincture they are buying. Clear labeling is essential when distributing CBD in Spain. A product’s label should describe the exact concentration of CBD as an active ingredient, the content of the solution, the specified amounts of each ingredient, the manufacturing method used, and the instructions for use and dosage. The label should also refer to a website with more detailed information.

Uncertainty also comes from a recent change in US law. Previously, the legal status of CBD products in the US also turned on the part of the cannabis plant from which the product was extracted. However, the Drug Enforcement Administration recently promulgated a rule creating a new “Controlled Substances Code Number” for “Marihuana Extracts” and extends that classification to extracts “containing one or more cannabinoids from any plant of the genus Cannabis.” CBD is a cannabinoid and hemp is a plant of the genus Cannabis so the rule explicitly applies to CBD products sold in the US. Though we vehemently dislike this new rule, it does mean that companies should not distribute CBD products in the US unless they are doing so pursuant to state law in a state where marijuana is legal in some form.

The Spanish market has an appetite for CBD dietary supplements that is not being met by the many other plant-based dietary products being launched and accepted by the Spanish public. The opportunities for CBD products are clearly there in both the EU and in Spain, but this is a complicated legal arena that calls for caution.

Canada cannabis trademarksFor quite some time now, my firm’s cannabis lawyers have been working with Canadian clients looking to enter various state-legal markets for cannabis in the United States. Now, with recreational cannabis legalization poised to happen in Canada, we’re predicting even more collaboration between Canadian and U.S. cannabis companies. And one of the ways companies are already building cross-border collaborations is through IP and brand licensing deals, which raises the issue of trademark protection.

According to Canada’s health minister, federal legislation to legalize marijuana will be introduced in spring 2017. In the meantime, many Canadian companies are pursuing opportunities to partner with cannabis businesses in the United States to gain valuable industry experience, and to establish their brands in anticipation of going to market in Canada.

When Canadian clients are preparing to move into the U.S. market, one of the first questions they ask is if they can simply use their existing Canadian trademark registration as the basis for obtaining a trademark registration in the U.S.. The answer to that question is no. To obtain a trademark in the U.S., the applicant must make actual use of that mark in U.S. commerce. A Canadian applicant can also file a federal trademark application on an intent-to-use basis if they have a bona fide intent to sell their goods in the United States.

When applying for a trademark in another country, regardless of your country of origin, it is important to perform a clearance search on your mark to make sure the mark is available in the new country. Just because a mark is available in Canada, doesn’t mean the same mark will be available in the United States, or vice-versa. And even if there are no similar marks registered with the USPTO, it is also important to perform a clearance search to determine whether there are any conflicting state trademark registrations, or any companies with superior common law rights in your mark. This means that if you know you will be operating in both Canada and in the United States, you should choose a brand name you know you can register as a trademark in both countries.

Another important thing to note is that filing fees are structured differently in the U.S. than in Canada. In Canada, there is one fixed fee for any trademark application, and that fee is relatively low. In the United States, the fee will depend on the number of classes of goods and/or services the application covers.

Canada does not require a specimen of use for trademark registration or renewal purposes, but the U.S. requires a specimen be filed with every trademark application based on actual use. This specimen must show how the trademark is being used on the relevant goods and/or services, and may include packaging, labeling, or samples of advertising of services such as brochures or signage.

And finally, whereas Canada has only a single trademark register, the U.S. has what are referred to as both a “principal register” and a “supplemental register.” The supplemental register provides limited protection for certain marks that do not qualify for registration on the principal register due to, for example, mere descriptiveness. Registration on the supplemental register is limited to marks that are already in use in the U.S.. The supplemental register offers benefits to marks deemed descriptive, including the ability to use the ® symbol. It also may be used to prove exclusive use of the mark for a five-year period, which is one of the requirements for proving distinctiveness in order to transfer the mark to the principal register.

With these significant differences between Canadian and U.S. trademark law, it is important to consult with experienced international trademark counsel when pursuing trademark applications in both countries. And if your company is considering doing cross-border work, it’s important to explore whether your trademark rights can be utilized sooner rather than later.

Foreign cannabis investmentIn addition to my work on corporate, finance, and transactional issues with marijuana-related businesses, I also work with my firm’s foreign direct investment group. We have been getting a lot more interest recently about foreign investment into the U.S. cannabis industry, so today’s post will be a brief primer on some of the legal issues involved in this tricky space. As would be expected, much of this interest is from Canada, Spain, Israel, The Netherlands and Germany, with a bit from Croatia, Chile and China as well.

What does foreign direct investment mean? In general, foreign direct investment (FDI) refers to any type of cross-border transaction where a company or investor from Country A invests money in a company located in Country B. It generally doesn’t refer to dumping money broadly into stocks and bonds — it is specifically about a concentrated single-enterprise investment.

FDI exists in several forms. Foreign investors can start a new company and can finance and build it from the ground up. They can participate in a joint venture with U.S. partners. They can wholly or partially acquire a U.S. business. They can also take a lighter touch, where they provide primarily branding and process support while having U.S. parties take on the bulk of the financial risk — the basic franchise model.

State Cannabis FDI Issues. In the marijuana industry, we have already seen large FDI projects in cannabis ancillary services. Foreign investors have opened up domestic companies for the manufacture and import of cultivation equipment like grow lights and hydroponic equipment, processing equipment like automated trimmers and extraction machines, and associated inputs including soil, fertilizer, vapor pen batteries and cartridges, and more. We have also seen large amounts of foreign money come in for cannabis real estate projects. In addition to buying the real estate, the foreign investors put money into greenhouses, grow lights, storage facilities, and more to offer turnkey cultivation and processing facilities for lease to local businesses. These companies are largely unregulated at the state level, and their foreign investment issues are similar to non-cannabis businesses, dealing with things like registering as U.S. taxpayers for partnership taxed businesses, complying with FIRPTA, and dealing with immigration issues.

For firms directly involved in the buying and selling of cannabis, state restrictions become more of a concern. States like Washington do not allow anyone who is not a state resident (much less not a U.S. resident) from having any profit interest in a marijuana business. Even Oregon, which has the most liberal ownership restrictions in the country for marijuana businesses, presents some unique issues. State regulations and state laws are written with U.S. residents in mind. Though Oregon does not require state or even U.S. residency to have an ownership interest in a marijuana business, it is unclear how Oregon would deal with foreign owners that need to get a criminal background check. Neither state officials nor the FBI are likely to have any real information on foreign nationals that haven’t had prior contact with the United States. Questions remain regarding how states would deal with foreign owners of marijuana businesses. 

What about federal criminal law? The Federal Controlled Substances Act doesn’t differentiate between activities that are international, interstate, or fully intrastate in nature. Possessing, manufacturing, and distributing marijuana are illegal federally regardless of where the company’s owners live. Still, there are a couple of criminal statutes that add fuel to the fire when interstate and international commerce are involved. 18 U.S.C. § 1952, for example, criminalizes traveling or using the mail in interstate or foreign commerce with intent to distribute the proceeds of marijuana sales.

More questions arise when considering foreign ownership in the context of the Department of Justice marijuana enforcement memoranda that cannabis-legal states are working under. The main takeaway from the August 2013 Cole Memorandum was that if the states want to keep federal law enforcement away, they need to make sure their regulations prevent state license-holders from violating the various federal enforcement priorities. One of those priorities was that state regulations need to prevent “revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels.” If the state and federal criminal background check databases don’t have extensive coverage on foreign crimes, how can the state have faith that the foreign investors don’t fall into one of those categories? For now, with no broad pronouncements coming out, it appears that the federal government is taking a wait-and-see approach to foreign ownership of state cannabis businesses. It is up to state cannabis business participants and the states themselves to ensure that foreign owners do not violate federal enforcement priorities.

Counterfeit Cannabis products
Just about everything can be and has been counterfeited, including cannabis products

Our firm, which does work not only with regulated substances, but also with international trade and China law, has seen an influx of clients complaining about counterfeit goods, and seeking our help in dealing with the problem. Ebay has long struggled to address the sale of counterfeit goods on its site, and now retailers like Amazon and Alibaba are facing the same challenges, perhaps to an even greater degree.

Amazon, for example, has a third-party marketplace that makes up more than 40 percent of its sales, and Chinese manufacturers are able to utilize this marketplace to reach consumers directly. We have a client whose Chinese manufacturer stole its product design and began selling knockoffs using our client’s brand name on Amazon. Amazon’s product catalogue is made up of around half a billion products, making counterfeit policing a monumental task for its legal and compliance teams. Counterfeit sellers that are shut down one week often simply open a new account with a new email address this next. It’s a vicious cycle.

As the cannabis industry grows, and as ancillary companies selling smokers’ accessories grow with it, counterfeit goods in this industry will only become more prevalent. We’ve already seen instances of counterfeit rolling papers, glassware, water pipes and vape pens, and these are surely not the only goods being counterfeited. As more states legalize recreational cannabis and as more companies build up their brand names and reputations, we have no doubt the issue of counterfeit cannabis products will also eventually become a pressing issue.

As a business owner, it is critical to take preventative steps to ward off counterfeiters, and to know what to do in the unfortunate event someone does counterfeit one of your goods. And as we tell all our clients: investing in these preventative steps now is always less expensive than fighting a legal battle in court down the road.

So what preventative steps should cannabis businesses take to address counterfeiting? Prevention hinges on first identifying your intellectual property (IP), determining what categories it falls into, and then protecting it accordingly in the relevant jurisdictions. The design of a novel device like a water pipe, for example, could be subject to patent protection. Though we’ve blogged extensively about the difficulty in obtaining federal cannabis trademarks, federal patent law does not contain the same “legal use in commerce” requirement, or a prohibition on “immoral or scandalous” matter. A patent is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office (USPTO), and this property right gives the inventor “the right to exclude others from making, using, offering for sale, or selling the invention in the United States or importing the invention into the United States.” Patents are often the most powerful tool in fighting counterfeit goods.

Patent infringement is not the only way counterfeiters can rip off products. Oftentimes, when talking about counterfeits, we’re talking about trademark infringement rather than patent infringement. A counterfeiter could, for example, slap your logo on its vape pen, exploiting the goodwill and notoriety you’ve established through your brand. Of course, the best way to prevent trademark infringement is to register your trademark with the USPTO. Although it is not possible to obtain a federal trademark for use on goods that violate the Controlled Substances Act (CSA), it is often possible to obtain trademark protection for goods that do not violate the CSA, like many smokers’ accessories. A trademark gives the owner the exclusive right to use their mark on the specified goods in commerce, and it gives the owner a right to seek remedy in federal court in the event of infringement.

If you are having your products manufactured in China (or anywhere else overseas), as is the case these days with so many of our clients, you need to protect your IP there as well. Because if you don’t register your trademark or your design patent in China, someone else almost certainly will and then that someone else will be able to stop your products from leaving China because those products violate their intellectual property! For more on this, check out China: Do Just ONE Thing: Register Your Trademarks AND Your Design Patents, Part 1 and China: Do Just ONE Thing: Register Your Trademarks AND Your Design Patents, Part 2.

But logistically, how does enforcing your IP rights against counterfeiters play out? Typically, it doesn’t make sense to take the alleged infringer straight to court. Litigation is expensive, and there is often room to negotiate. When you know who the infringing party is, your attorney can contact them with a cease and desist letter directly. But when the party is, for example, a third party seller on a larger platform like Amazon, tracking down the infringer is much more difficult.

The protocol for dealing with an online retail platform in taking down counterfeit goods will vary depending on the company. With every large company we’ve worked with, however, the process is expedited greatly where the party alleging a counterfeit is able to offer up proof of their own IP rights. This is particularly true with trademarks, where infringement is often apparent, and the retail platform can quickly decide to suspend a counterfeiter’s account. Without verifiable IP rights, the retail platform is put in a difficult position of having to figure out who has the right to sell what. This involves complicated legal analysis, and takes substantial time and resources, as well as back-and-forth with both parties. In the meantime, you’re likely losing business.

So the lesson here is two-fold. First, make sure you’ve identified your intellectual property and that you’ve taken every step possible to register and protect it. Second, if you suspect a company is selling a counterfeit of your product, contact your attorney immediately and develop a strategy for blocking the counterfeit sales, whether through direct communication with the counterfeiter, or by working with the relevant online retail platform.

 

Cannabis business lawyersI had the opportunity last Friday to spend some time with officials from Jamaica’s Cannabis Licensing Authority. The University of Washington’s Cannabis Law & Policy Project and the Washington Office on Latin America put the event together so that Jamaica’s cannabis regulators could speak to a few experienced cannabis business and regulatory lawyers to get input on what does and doesn’t work in Washington, Oregon, California, and Colorado, and the various other states with some form of cannabis legalization. Our firm has participated in events like these before involving various countries, including the Canadian government, the French government, and with groups of Japanese, Spanish, German, Israeli and other investors. Though the main goal is to be helpful to these countries that are building out their own systems, we always tend to learn a few things, and this event was no different.

One challenge Jamaica’s regulators are trying to deal with is how to protect small domestic farmers. The goal of cannabis legalization, for Jamaica and for most other countries, is twofold — to avoid putting people in jail for possessing marijuana and to provide a new legal business avenue for its residents. But not all legalization is created equal, and countries that don’t take precautions can end up cutting out their less connected citizens. Most Jamaican farmers are not going to hire attorneys to fill out complicated license applications. So, if Jamaica’s system implements any type of paper-heavy up front filing requirements, it will be leaving out the people its regulators most want to protect. This isn’t about keeping foreigners away entirely, as foreign finance can be a good thing. But it is about crafting rules and licensing requirements to make them accessible to those in society you are trying to reach.

Another issue Jamaica faces that comes up consistently for small countries looking to legalize cannabis is the fallout of potentially violating treaty obligations. The United States and 184 other countries are signatories to the Single Convention on Narcotic Drugs of 1961, as amended. The Single Convention’s goal is to prohibit the production and supply of various drugs, including cannabis. Cannabis is listed on Schedule IV of the Single Convention — the most restrictive schedule set aside for drugs particularly prone to abuse and to produce ill effects, without an offset of therapeutic advantages. Even if cannabis were not listed on Schedule IV, Article 28 calls it outs specifically, requiring that any production of cannabis be completely controlled by the signatory’s government.

If you’ve never read the Single Convention before, its language can seem stilted and incomplete. This is what happens when a single document is supposed to be equally enforceable in 6 languages. But even with the odd language, the treaty is relatively clear that countries are supposed to keep cannabis illegal.

When the United States doesn’t comply with its treaty obligations, nothing much happens. The United States abides by international law because we want to and we want other countries to do the same, but the U.S. court system has consistently allowed the United States to avoid its treaty obligations by virtue of the treaty being non-self-executing: we need to pass additional domestic law to make it enforceable. Regarding the Single Convention, the United States contends that it still meets its treaty obligations regarding marijuana because it is still federally illegal, despite multiple states legalizing it.

But for Jamaica, and similarly-sized countries, the restrictions of international drug control treaties are vastly more important. Jamaica receives millions of dollars in foreign aid annually, and many foreign aid require Jamaica abide by its treaty obligations, including its obligations under the Single Convention. Any move by Jamaica to legalize cannabis in a way that is not at least arguably compliant with the Single Convention places this foreign aid at risk. This isn’t to say that Jamaica’s regulatory scheme doesn’t meet those obligations — it’s just that the stakes are higher for Jamaica than they are for us.

So, to add to the list of reforming U.S. banking laws, tax laws, and overall drug laws, we may want to do our small country friends a favor and revisit the Single Convention on Narcotics’s approach to marijuana. The United National General Assembly Special Sessions in April of this year had some people hoping for some progress, but nothing came of it, as they released a statement that didn’t even acknowledge cannabis legalization in various countries.

The struggle continues.

cannabis trademark lawyer

Next Monday in Orlando, Florida, Alison Malsbury, our lead cannabis IP attorney, will be speaking at the 2016 INTA Annual Meeting on cannabis trademark issues. Alison will be part of the Pharmaceutical Marijuana Law – Branding, Marketing and Regulatory Issues panel that will be introducing IP practitioners to federal and state cannabis laws, and will cover both domestic and international trademark issues unique to the industry. Registration for the event is open through the end of this week.

INTA is by far the leading association of international trademark lawyers and we could not be prouder of Alison for being selected to speak on cannabis IP at its annual event.

Alison will be delving into the issues trademark lawyers face when practicing in the cannabis industry, including the federal versus state law conflict, difficulties in obtaining federal trademark protection, a breakdown of the USPTO’s basis for refusing cannabis trademarks, state trademarks, and the complexities of trademark licensing deals.

The panel will be moderated by Lisa Martens, a partner in the Intellectual Property Practice Group at Sheppard Mullin. Fellow panelists also include Tamar Todd, Senior Director of the Office of Legal Affairs at Drug Policy Alliance, and Charles Gielen, an attorney with Amsterdam-based firm NautaDutilh and a professor in IP law at Groningen University.

We have written extensively on intellectual property law and branding issues in the cannabis industry, and a compilation of those articles can be found here.

The UN on cannabisI was in New York last week chairing a panel about investment in the cannabis industry for NYU’s Cannabis Science and Policy Summit (which I’ll blog about shortly). While I was there, the United Nations kicked off its first Special Session of the United Nations General Assembly (“UNGASS“) in two decades on worldwide drug policy reform. At the last UN special session on drugs in 1998, international leaders agreed to “work toward a ‘drug free world‘ by 2008.”The UN is well known for being no fan of cannabis legalization. It has openly criticized legalization in Washington and Colorado and its drug control policies are mostly centered on prohibition based on the. The 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 Convention Against Illicit Traffic in Narcotics mandate UN member states combat drug use and implement prohibition and criminalization.

The UNGASS agenda this year contained multiple round tables on myriad issues related to worldwide drug policy reform and, ultimately, reduction of harm. Unfortunately, the Special Session still supports prohibition of marijuana via a “drug plan” the Commission on Narcotic Drugs adopted in Vienna in 2014, which adoption takes the form of this “outcome document” adopted at this year’s UNGASS. Still, there was at least a bit of robust debate regarding cannabis and some even talked about the need for more sensible drug policies worldwide. Representatives from Jamaica asked the UN to specifically review marijuana’s illegal status and multiple other countries (including Mexico and Colombia) expressed their disappointment with the international community’s failure to acknowledge that the “war on drugs” in pretty much all countries has been a complete failure.

Jamaican Foreign Minister Kamina Johnson-Smith talked about how absurd it is to schedule cannabis as a dangerous drug with no medical uses:

Scheduling cannabis as a dangerous drug with no medical use — a status that dates back to the 1961 Single Convention on Narcotic Drugs — is outdated and out of touch. Johnson-Smith further stated that “[w]e contend that the classification of cannabis under the Single Convention is an anomaly and that the medical value of a substance must be determined by science and evidence-based analysis, above other considerations . . . .

Ultimately, the “outcome document” adopted at this UNGASS adhered to the UN’s existing conventions which only support hardline drug policies. This means that the UN will not be embracing cannabis legalization (for non-medical or non-scientific use) anytime soon (or at least not until 2019 when the next UNGASS is scheduled). As multiple countries continue to implement more progressive recreational cannabis law reform, the UN’s overall support for prohibition is going to continue to create political conflict and inconsistency across borders. As Richard Branson aptly puts it in his op-ed on UNGASS 2016:

The problem is that UNGASS is out of step with realities on the ground. As more and more national, state and municipal governments pursue progressive approaches – including regulation – the more they will show the inherent flaws of the international drug control regime. The risk is that the UN fails to adapt to changing priorities, realities and evidence and that the multilateral approach to controlling drugs collapses altogether. It may already be too late to save the broken and fragmented drug regime.

Though many Americans view the UN unfavorably and of little import, many smaller countries around the world view it with more respect. Our fear is that those countries will listen to and abide by the UN’s dictates on cannabis and slow down their own legalization programs. We will see.

Barcelona: a leader in architecture is now a leader in cannabis
Barcelona: a leader in architecture is now a leader in cannabis

This will be the first in what will be an irregularly scheduled series of posts on cannabis in foreign countries. We hardly need to tell you that both cannabis and cannabis legalization are not confined to the United States. We will through this series be showing you what other countries are doing, both because we view this as an interesting topic and because we all should be learning from each other. Eventually, as cannabis legalization dominoes continue falling around the world, there will come a day when cannabis will be exported and imported between countries no differently from other products.

When thinking about cannabis clubs and lounges, many of us instantly think of Amsterdam “coffee shops,” but there is another European country experimenting with cannabis clubs that is rapidly becoming a European cannabis center: Spain.

Spain, and Catalan (think Barcelona) in particular, has seen the number of its cannabis clubs grow exponentially by taking advantage of a legal loop-hole in the country’s ban on marijuana trafficking. Spanish law allows for private cultivation and consumption, including collective consumption. So what did entrepreneurial Catalonians do with this? They opened membership-only cannabis “associations” where marijuana is collectively consumed in private. There are now approximately 400 such “associations” in Catalan alone.

One of the most interesting aspects of the Spanish model is the distinctly non-commercial approach of its cannabis clubs, the official aim of which is to reduce the “negative effects of drug use.” Many of these cannabis clubs bring in medical doctors and other health care professionals to give medical advice to the club’s members.

Why are Spanish clubs run this way? Part of the reason lies in the legal requirement that clubs be run on a not for profit basis. Though nearly all of Spain’s cannabis clubs have membership fees to join, most use the membership funds for operating costs, with any additional revenue being reinvested into operations. Another reason for Spain having become a center for such cannabis associations is the legal loophole under which these clubs must operate: cultivation and consumption of marijuana is allowed in Spain, but trafficking of marijuana is still illegal. Thus, clubs must be careful to avoid taking any actions that might make its leaders or its members susceptible to arrest under Spain’s drug trafficking laws.

The Spanish approach is yet another phenomenon in the wave of cannabis legalization around the world and its successes or failures will no doubt serve as a useful case study for legalization efforts in the U.S. and around the world.