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CBD and US trademarks

A recent appeal to the USPTO Trademark Trial and Appeal Board confirmed once again that any use of a federal trademark for CBD products must be a lawful use. In re Stanley Brothers Social Enterprises, LLC, Serial No. 86568478 (TTAB June 16, 2020) (see link hosted on Mega.nz).

The USPTO's starting point is that any use of the mark in commerce must be a lawful use.

The Food, Drug & Cosmetics Act ("FDCA") prohibits “[t]he introduction or delivery for introduction into interstate commerce of any food to which has been added … a drug or biological product for which substantial clinical investigations have been instituted and for which the existence of such investigations has been made public ….” 21 U.S.C. § 331(ll). The Examining Attorney found applicant's goods were food because they were identified as dietary supplements and intended to be used as components of food, and that CBD is a drug because GW Pharmaceuticals has two investigations into CBD. Thus TTAB found the applicant's use of the mark on food in commerce was not lawful, and it refused to register the mark.

If you are seeking to register a mark on CBD goods, you should not describe your goods as something that could be considered a food under the FDCA.

Photo by HempCrew on Unsplash

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