There are valid trademarking strategies for cannabis-related businesses. While you cannot trademark your cannabis — the specific product — at the federal level, you CAN trademark your cannabis at the State level and, at the federal level, you CAN trademark everything related to your cannabis. Indeed, at the federal level, it is important to register your trademark for cannabis-related products and services because if and when cannabis is made legal nationally, then your cannabis business can apply to register your already-established valid cannabis-related trademark for your cannabis.

Here we will focus on federal-level trademark registration. However, as noted above, you CAN register cannabis trademarks at the State level in States where cannabis is legal. That should be done because it gives you trademark protection at the State and regional level and helps immensely with any later-filed application to register your trademark(s) at the federal level.

Understand that trademarks must be registered with respect to classes of goods and services. That is, each trademark must be registered and “associated” with one or more classes of goods or services. There are 45 general classes, with hundreds of subclasses. Take tobacco, for example. Tobacco itself — as a product — and most products related to tobacco are included in trademark Class 034. Tobacco-specific products include use-variations like loose-leaf tobacco, cigarettes, cigars, chewing tobacco, snuff, pipe tobacco, flavor-infused tobacco, etc. Tobacco-related products include things like lighters, ashtrays, holders, filters, pipes, pouches, cigarette cases, pipe cleaners, etc. Tobacco is legal, so federal trademark registration can be obtained for all of these products.

By contrast, since cannabis is illegal at the federal level — it is still considered a controlled substance — you cannot obtain federal trademark registration for cannabis as a product like cannabis cigarettes, loose cannabis, etc. However, you CAN obtain a federal trademark registration for cannabis-related products like lighters, ashtrays, holders, filters, pipes, bongs, etc.

Why Does This Matter?

By having a federal trademark registration for a cannabis-related product in Class 034, no other business can “steal” your trademark. The U.S. Trademark Office will refuse registration if there is already a registered trademark that is the same as or confusingly similar to one that is already registered, particularly if the proposed trademark is in the same class (or in a coordinated class) as the already registered trademark. In addition, with an already registered trademark, it is relatively easy to extend that registration to cannabis products if and when cannabis becomes legal at the federal level.

Although the U.S. Trademark Office has not officially added classes and subclasses for cannabis, likely, cannabis flower, leaves, etc., would be classified as Class 034 while seeds and live plants would be Class 031. California has advised that the following Classes should be used when applying for California State trademark registrations:

• Classification Code 5: Pharmaceuticals: trademarks for medicinal products containing cannabis extracts
• Classification Code 31: Natural Agricultural Products: trademarks for live cannabis plants
• Classification Code 34: Smokers Articles: trademarks for cannabis products intended for smoking
• Classification Code 35: Advertising and Business: service marks for retail stores selling cannabis products
• Classification Code 39: Transportation and Storage: service marks for delivery of cannabis products

Contact the Trademark Attorneys at Revision Legal

For more information, contact the experienced Trademark Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.