The U.S. Patent and Trademark Office (USPTO) has said in a new memo that it is updating its guidelines for registering hemp products in light of the 2018 Farm Bill.
It was the Farm Bill which passed in December that federally legalized the crop.
The federal agency said that it would not register goods and services, including controlled substances, that violate federal law.
Applications for trademarks for products that meet the definition of hemp, which cannot contain more than 0.3 percent THC on a dry weight basis, may be accepted.
The applications must have been submitted on or after December 20, 2018, when President Donald Trump signed the Farm Bill into law. Trademark applications for hemp goods and services that were given in before the bill was signed will be rejected “due to the unlawful use or lack of bona fide intent to use in lawful commerce under the CSA.”
“Such applications did not have a valid basis to support registration at the time of filing because the goods violated federal law,” the USPTO wrote. “However, because of the enactment of the 2018 Farm Bill, the goods are now potentially lawful if they are derived from ‘hemp’ (i.e., contain less than 0.3 percent THC). Therefore, the examining attorney will provide such applicants the option of amending the filing date and filing basis of the application to overcome the CSA as a ground of refusal.”
“Applicants should be aware that even if the identified goods are legal under the CSA, not all goods for CBD or hemp-derived products are lawful following the 2018 Farm Bill,” the new memo reads. “Such goods may also raise lawful-use issues under the Federal Food Drug and Cosmetic Act (FDCA).”
“The U.S. Patent & Trademark Office’s relatively quick recognition of the revised legal status of hemp and hemp-derived CBD is both commendable and encouraging,” said Larry Sandell to Marijuana Moment. Sandell is a registered patent attorney with Mei & Mark LLP.
He added, “Although a clear pathway for some businesses in the CBD space to protect their branding has been confirmed, many CBD businesses are still unable to federally register their trademarks.”
“Ultimately, the best course of action for most CBD businesses seeking to secure their brands may be to join the rapidly increasing number of cannabis entrepreneurs that have filed ‘Intent to Use’ (ITU) Trademark Applications at the USPTO,” he said.
“These ITUs applications serve to stake ground until the USPTO considers each cannabis-related trademark to have been legally used in commerce under (future) federal law.
