cannabis marijuana copyright
Definitely worth a shot.

Every business thrives on brand differentiation. One of the most effective ways to promote public identification and recognition is to enhance and protect your brand. Your brand is of course your name but it is also your logo. Beyond that, really, it’s everything about you.

As far as “formal” branding elements, logos are right there at the top. Still, there is a fair bit of confusion among business owners and even lawyers about how logos are legally protected. Are they to be registered as trademarks? Copyrights? Are logos registrable as both?

Let’s look at trademark first. Trademarks are words, phrases, symbols or designs that identify the source of a product and help distinguish that product from that of competitors. However, as we have written about extensively on this blog, federal trademark protection is not typically available to cannabis businesses because the federal illegality of “marijuana” prevents owners from demonstrating lawful use of their marks in commerce—a prerequisite imposed by the United States Patent and Trademark Office.

Fortunately, trademark law is not the sole intellectual property (“IP”) tool a cannabis business can use to protect its logo. Copyright protection may be available as well. Unlike trademark law, copyright law does not prohibit the type of work that is eligible for copyright protection. Accordingly, cannabis-related works, including logos, often may be copyrighted.

To benefit from copyright protection, a cannabis logo must:

  1. Be original to the author, which means the author must have created the work independently (e., the work must not be copied);
  2. Possess a “minimal degree of creativity;” and
  3. Be fixed in a tangible form that is sufficiently permanent to be reproduced.

Therefore, logos that are adequately original and ornate have a strong chance of being copyright protected. Note that such logos would be copyright protected even without registration. It is however in the business’s best interest to register its logo with the U.S. Copyright Office. Registration affords significant benefits, particularly in the context of copyright infringement, because it gives the business the right to sue and to be awarded statutory damages and attorney’s fees should it prevail on an infringement claim. In addition, copyright registration is relatively straightforward and inexpensive.

Regardless of those benefits, it is important for cannabis businesses contemplating the federal registration of their logos to understand the possibility that their copyrights might be unenforceable. Because all copyright infringement cases must be adjudicated by a federal court, there is a risk that the federal illegality of cannabis would arise in certain facets of litigation and hinder the enforceability of the copyright. (The same would be true in cannabis patent enforcement cases, as we discussed here.) However, such risk is currently speculative as no cannabis copyright infringement case (or patent infringement case) has been litigated.

Assuming the copyrighted logo of a cannabis business is enforceable, it affords the business the exclusive right over the logo’s reproduction and public display. In addition, copyright protection gives the cannabis business the ability to receive compensation for the use of the logo by others. Not only does copyright protection help the cannabis business enhance its public recognition, it also enables the business to capitalize on its IP assets and helps it secure market dominance and profitability, and this for the life of the copyright holder, plus 70 years.

In conclusion, given the fact that cannabis businesses are presently barred from securing federal trademark registration for their logos, they should consider copyright registration for qualifying logos, in order to achieve brand differentiation and secure a critical competitive advantage. The value proposition for copyrights is all the stronger given the inexpensive and straightforward nature of the registration process.

industrial hemp cannabis farm bill
We like this one.

For the past few months, the U.S. Senate has made significant strides toward legalizing industrial hemp. That is welcome news to many of our clients, who are working with the plant under federally approved Agricultural Pilot Programs, while also dealing with almost absurdly complex issues surrounding the legality of cannabidiol (“CBD”) sales.

The legislative developments began in earnest earlier this year, when Senate Majority Leader Mitch McConnell (R-KY) introduced the short and sweet Hemp Farming Act of 2018 (the “Hemp Farming Act”), which aims to lift an 80-year old ban on hemp as an agricultural commodity. We analyzed that development here.

Then, on June 5th, the Senate adopted its third annual non-binding resolution that recognized “the growing economic potential of industrial hemp” and its “historical relevance,” further suggesting Congress’s intention to legalize the non-psychoactive cannabis cousin of marijuana. Around the same time, Senate Leader McConnell incorporated the Hemp Farming Act into the wide-ranging agriculture and food policy bill known as the 2018 Farm Bill to ensure a greater chance of success, and it worked. Last week, the Senate overwhelmingly approved the 2018 Farm Bill, including the Hemp Farming Act, by an unambiguous 86-11 vote.

As with the Strengthening the Tenth Amendment Through Entrusting State Act (the “STATES Act”), which we covered here and here, the Hemp Farming Act provides for the removal of industrial hemp from Schedule I of the Controlled Substance Act (“CSA”). This removal would explicitly legalize the cultivation, processing and sale of all hemp-derived products, including CBD. This means that if cannabis legislation continues to move forward in Congress—which seems highly probable given the fact that the Hemp Farming Act has passed the Senate and that the STATES Act has reached the House—Congress will likely reconcile these pieces of legislation and industrial hemp prohibition will end.

In addition to removing industrial hemp as a Schedule I drug of the CSA, the passage of the Hemp Farming Act into law would:

  • Empower states and tribes to regulate the production of hemp without fear of federal intervention;
  • Permit farmers to grow, process and sell hemp-derived products as an agricultural commodity, which in turn would create economic opportunities and stimulate economic growth in rural communities;
  • Make hemp plants eligible for crop insurance;
  • Ensure access to public water rights for hemp farmers;
  • Enable hemp farmers to access the national banking system;
  • Recognize that some hemp-derived products, such as CBD oils, have valid medical use;
  • Make hemp-derived products eligible for federal trademark protection; and
  • Advance research opportunities by enabling hemp researchers to apply for grants with the U.S. Department of Agriculture.

Although the passage of the Hemp Farming Act in the Senate is a promising step toward the legalization of industrial hemp, more hurdles must be overcome before the federal legality of hemp becomes the law of the land.  The Hemp Farming Act now must be merged with a competing version from the House, which does not provide for the legalization of industrial hemp, before it can reach President Trump’s desk for signature.

Whether the final version of the Hemp Farming Act will become law is purely speculative at this point; however, the fact that Senate Majority Leader McConnell (i.e., THE most powerful senator) is its most fervent supporter seems to suggest that the Hemp Farming Act is likely to survive and (hopefully) become law. We will definitely keep you posted.

In the meantime, for more on industrial hemp and CBD, check out the following:

cannabis copyright marijuanaCopyright is an aspect of intellectual property (IP) law less frequently considered by cannabis businesses than trademark, trade secrets or even patents it seems. Yet, like these other forms of intellectual property, copyrights can afford their holders with market dominance and profitability when utilized correctly. Almost all marijuana businesses own numerous unregistered copyrights, whether or not they realize it.

This post briefly covers the concept of copyright and how it applies to the cannabis industry.

What does copyright protect?

Copyright is a form of IP law that protects creative expression of ideas. Specifically, copyright protects original works of authorship, including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.

The cannabis industry protects copyrights in a variety of ways. For example, the writing and photographs on a cannabis business’s website are copyright protected. This might include descriptions of a particular product or just the layout of the website itself. Physical media like labels, product tags, packaging, logos, instructional materials, and product design can all be protected by cannabis industry copyrights. Books that discuss cannabis production methods, such as Ed Rosenthal’s “Marijuana Grower’s Handbook,” also have copyright protection.

Is registration necessary for copyright protection? 

No. A work of authorship is protected the moment it is created and “fixed in a tangible form.” A work is fixed in a tangible form if its expression is sufficiently permanent to allow it to be communicated for more than a transitory duration. Accordingly, registration is not necessary for copyright protection.

However, registration affords significant benefits, particularly in the context of copyright infringement. These benefits include:

  • The right to sue for infringement;
  • Automatic proof that the registrant is the rightful owner of the copyright, which shifts the burden of proof on the defendant to show that the registrant is not the rightful owner or that her work is not protected; and
  • Additional remedies, like statutory damages and attorney’s fees, if the registrant prevails on her infringement claim.

Given the fact that copyrights are inexpensive and quick to register online, we recommend registration in most cases.

Are cannabis copyrights registrable and enforceable?

The Copyright Act contains virtually no prohibitions on what types of work are eligible for copyright protection, including cannabis-related work. Instead, the Copyright Act simply contemplates the level of originality in a given item. And on that point, the Act provides a decidedly low bar to registration, requiring only “a minimal degree of creativity.” For cannabis brands, federal copyright protection is available to protect most business creations, as long as those creations are sufficiently original to be copyrightable.

Nevertheless, it is important to remember that under the Copyright Act federal courts have exclusive jurisdiction over infringement actions. Therefore, like in patent infringement lawsuits, there is a potential risk that the federal illegality of cannabis would be raised in various litigation aspects and would impeded the enforceability of a cannabis copyright. To this date, no cannabis copyright infringement claim has been raised, making it impossible to determine whether cannabis copyrights are in fact enforceable.

What rights does copyright afford?

Copyright affords the holder the exclusive right to control his work through reproduction, distribution, public display and performance.  Copyright also gives the holder the right to be compensated for the use of his work.

How long does copyright protection last?

Generally, works created by individuals are copyright protected for the life of the author, plus 70 years. Works created anonymously, pseudonymously, and for hire are protected for 95 years from the date of publication or for 120 years from the date of creation, whichever is shorter. Compared to the maximum shelf life of a patent, or terms of trademark registration, copyright protections last incredibly long.

How does copyright infringement occur?

Copyright infringement occurs when an individual uses another’s work without permission. Typically, permission is granted through a licensing agreement, which transfers some of the owner’s exclusive rights to another. In addition, the terms of the license agreement may limit the transfer of those rights to a specific period of time, to a physical location or to the means through which the rights may be exercised.

Note, however, that the legal doctrine of fair use, which promotes freedom of expression, permits certain unlicensed uses of copyrighted works, such as criticism, comment, news reporting, teaching and research.

As this post highlights, copyright affords valuable protection of certain intangible business assets.  As such, every cannabis business should take the time to determine which of its assets are copyrightable and whether registration would give them a competitive edge. Given the ease of registration and the rights associated therewith, it’s a no-brainer.

…all the way through the patent application process.

The cannabis industry relies on trade secrets and increasingly, patents, to protect intellectual property (IP) assets. Patents protect new and non-obvious inventions, including plants, processes, and machines, while trade secrets protect any information, including “patentable inventions,” that provide economic value to the holder if kept confidential. Accordingly, the same information could potentially be protected by patents or trade secrets.

Although patents and trade secrets are alternative protections, marijuana businesses should treat them as complementary to expand the lifetime of a trade secret disclosed in a patent application until the patent issues.

Patents afford the most powerful IP protection in that they provide their owner with a temporary monopoly to exploit her invention, including against those who independently discover the invention. In exchange for this temporary monopoly, the patent owner is required to fully disclose the invention to the public, so that once the patent expires, anyone may freely utilize the invention.

Generally, the disclosure of the invention occurs roughly eighteen months from the date of filing through a process known as “publication.” Publication does not grant the patent nor does it guarantee that the patent will be issued by the United States Patent and Trademark Office (USPTO). Instead, publication simply allows the public to examine the patent application while it is being reviewed.

The initial filing of a patent application does not immediately break the confidentiality of the trade secret disclosed in the application. The law requires the USPTO to keep all patent applications—with a few exceptions—confidential before they are published. Before publication, the trade secret will not lose its secrecy so long as the trade secret owner continues to take reasonable confidentiality measures.

At the end of the eighteen-month period, an applicant may extend the confidentiality of the patent application by avoiding publication. The applicant may do so by expressly abandoning the patent application, or by filing a request for non-publication (so long as the applicant does not seek patent protection in a foreign country). Maintaining an application as confidential as long as possible allows the applicant to delay the disclosure of its invention until the patent issues. In a highly fragmented and competitive market like cannabis, this can make a world of difference.

Once the USPTO decides that the patent application meets all the patentability requirements, the patent will issue in its final form. At that point, even an unpublished patent application inescapably becomes public and loses its trade secret protection. However, in return, the patent holder now has a patent that it can enforce against infringers. In other words, trade secret protection is no longer required.

So despite their significant differences, patents and trade secrets are closely intertwined and should be considered concurrently when applying for a cannabis-related patent. By keeping the patent application from becoming public for as long as possible, you can extend your trade secret protection until the moment the patent issues. That is a critical competitive advantage, especially in a rapidly developing industry.

For more on cannabis patents and trade secrets, check out the following: