A recent Wall Street Journal article explores the economic challenges that come with growing cannabis.

We found the article’s attention to a Denver strain name particularly interesting.  The article mentions how Denver Relief created a strain called Bio-Diesel that won a quality competition in 2009.  Shortly after, the Bio-Diesel strain name started appearing in dispensaries around Denver, attached to product different from that which had won the competition. The article notes how the US Patent and Trademark Office (USPTO) will not register trademarks for cannabis-related products.

The cannabis trademark discussion should not end there. When addressing marijuana trademark issues, the following should be kept in mind:

  • US trademark rights arise from using a name “in commerce”; registering a trademark only serves to enhance those rights.
  • Even though the USPTO will not register trademarks for cannabis-products, state trademark registrations are a viable and relatively inexpensive option for protecting your trade name.  Obtaining state registration of a cannabis trademark/trade name gives exclusive rights to use that trademark/trade name within that particular state.
  • To the extent a name is being used in commerce for non-cannabis goods and services, registering a federal trademark is still an option.  In other words, you can register your trade name for your killer brownies that just happen to have marijuana in them, but you can’t register your trade name for the marijuana itself.  Register the related products, not the cannabis strain itself.
  • Cannabis businesses with the foresight to trademark their brands need to be vigilant about enforcing their trademark rights or they risk losing them. This means tracking down infringers and possibly taking legal action against them.

The commercialization of cannabis means branding will only continue to increase in importance.  What separates one beer from another is more often the brand than the taste and we have no doubt that marijuana branding will be of equal importance.

For these reasons, we are always encouraging our cannabis business clients to creatively brand their businesses and their products and to register trademarks to protect the brands they have chosen.  Logos and other brand identifiers/differentiators are also advised.  In choosing your brand names, you have to be more than just creative; you should also make sure that your brand names do not infringe on anyone else’s brand name.  Just by way of an extreme example, you do not want to name your strain “Coca Cola” unless you want to be sued by Coca Cola. Trademark lawsuits are expensive.

The bottom line:  If you have a brand, protect it with trademarks.  If you don’t yet have a brand, get one.