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Can I get a federal trademark for CBD goods?

February 14, 2019

The answer is -- not yet.

 

Before the 2018 Farm Bill, the USPTO had two standard refusals to register a trademark related to hemp and cannabidiol (CBD), a non-psychoactive compound. The refusals are based on the requirement that the use of the mark in commerce must be lawful and, if the underlying good or service is illegal, then the use is not lawful.

 

The first refusal was based on the Controlled Substances Act (CSA). Under the CSA, hemp is a type of marijuana and marijuana is illegal.

 

The 2018 Farm Bill eliminates the first refusal for goods and services because it legalized hemp. The Farm Bill defines hemp to be a Cannabis plant with a low concentration of tetrahydrocannabinol (THC), a psychoactive compound.  It then changed the definition of marijuana in the Controlled Substances Act (CSA) to exclude hemp.

 

The second refusal was based on the Food & Drug Administration (FDA) positions. The FDA considers CBD to be an unlawful additives to food and drink. The FDA has not recognized CBD as GRAS (Generally Recognized as Safe). The FDA does not consider CBD products to be dietary supplements because businesses have submitted New Drug Applications with CBD as a pharmaceutical ingredient.

 

The 2018 Farm Bill however does not affect the second refusal.

 

Thus, the USPTO probably will not be granting trademarks for CBD goods. If you are seeking to register a federal trademark for CBD goods and services, you should look to trademark related goods and services that do not include CBD. Additionally, you should look to register your trademarks at the state level.

 

Image by rexmedlen from Pixabay

 

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