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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:
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.
The fundamental obstacle to federal trademark registration for cannabis products is the USPTO’s requirement that a trademark be used in “lawful commerce” — meaning the underlying goods or services must be lawful under federal law. Cannabis — including hemp-derived CBD products with THC concentrations above 0.3 percent — remains a Schedule I controlled substance under the Controlled Substances Act (CSA), 21 U.S.C. § 812. The USPTO will refuse registration for any mark used on goods or services that are illegal under federal law, regardless of whether those goods or services are legal in the state where the applicant operates.
This means a cannabis dispensary cannot register its brand name for cannabis retail services at the federal level, even if it operates exclusively in a state where adult-use cannabis is legal. The Trademark Trial and Appeal Board (TTAB) has repeatedly sustained refusals of cannabis product trademark applications on this basis, and the USPTO has issued guidance on this position in its examination guidance for cannabis-related applications.
The 2018 Farm Bill removed hemp — cannabis plants and derivatives with a THC concentration at or below 0.3 percent on a dry weight basis — from the CSA’s definition of marijuana. This created a federal trademark pathway for products derived from hemp meeting this threshold. However, the FDA’s assertion of regulatory authority over CBD as a drug ingredient (based on prior approval of Epidiolex, a CBD-based drug) created a separate obstacle for food, beverage, and dietary supplement applications. The USPTO has aligned with the FDA’s position and has refused trademark registration for CBD-infused edibles and beverages on the ground that they violate the Federal Food, Drug, and Cosmetic Act. The FDA’s regulatory stance on CBD continues to evolve, and businesses in the hemp/CBD space should monitor FDA guidance closely.
State trademark registration is an essential strategy for cannabis businesses, not merely a fallback from federal registration. The trademark priority doctrine — first use in commerce establishes priority — means a cannabis business that establishes consistent state-level trademark use now will have earlier priority dates than competitors who wait for federal legalization to begin building trademark rights. When federal registration becomes available — whether through Congressional action removing cannabis from the CSA or through FDA reclassification — the early state registrant will be positioned to claim federal registration based on prior use. State registrations are less expensive than federal registrations, generally processed more quickly, and can be obtained in all states where cannabis is currently legal.
The most sophisticated cannabis trademark strategy combines: (1) state-level registrations for cannabis product trademarks; (2) federal registrations for cannabis-adjacent goods and services; and (3) a plan to expand federal registrations to cannabis products upon federal legalization. A full brand audit should identify all product categories, services, and brand elements registrable at the federal level today:
The strategic benefit of registering in ancillary classes today is not merely to create enforceable rights in accessories and services — it is to establish a trademark record and build goodwill that can be extended to cannabis products the moment federal law allows. Revision Legal’s trademark attorneys have extensive experience developing cannabis trademark portfolios that protect brand rights under current law while positioning businesses for future federal registration. Contact us at (855) 473-8474.
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