Suppose that you want to federally register a trademark that identifies a source of goods or services related to your cannabis business. What if the trademark covers merchandise indirectly related to cannabis or products directly related to the use of cannabis? Should you attempt to register your trademark with the U.S. Patent and Trademark Office? Can you obtain a registration from the U.S. Patent and Trademark Office? The answer is it depends on the cannabis related goods and services.
To qualify for a federal trademark registration, the use of a mark in commerce must be “lawful”. See, The John W. Carson Found. V. Toilets.com, Inc., 94 U.S.P.Q.2d 1942, 1947-48 (T.T.A.B. 2010); In re Midwest Tennis & Track Co., 29 U.S.P.Q.2d 1386 (T.T.A.B. 1993); In re Stellar Int’l, Inc., 159 U.S.P.Q. 48, 50-51 (T.T.A.B. 1968).
The federal Controlled Substance Act (CSA), 21 U.S.C. §§ 812, 841(a)(1) 844(a), prohibits, among other things, manufacturing, distributing, dispensing, or possessing certain controlled substances, including marijuana an marijuana-based preparations. In addition, the CSA makes it unlawful to sell, offer for sale, or use any facility of interstate commerce to transport drug paraphernalia (i.e., “any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, possessing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under [the CSA].”) 21 U.S.C. § 863.
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