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Most simply, the United States Patent and Trademark Office (“USPTO”) will not register cannabis-related trademarks because cannabis growing, sale, distribution, and use is still illegal under U.S. federal law. In particular, cannabis is still listed as a banned controlled substance under the Controlled Substances Act (“CSA”). The CSA is a federal statute and, as such, governs the legality of cannabis at the federal level despite the fact that many States have legalized cannabis growing and personal use under their own State laws.
The USPTO is authorized to register trademarks under a federal statute called the Lanham Act. Because both the Lanham Act and the CSA are federal statutes, these statutes apply to federal registration of cannabis-related trademarks. Since cannabis is illegal and banned at the federal level, cannabis-related trademarks cannot be registered at the federal level.
In more detail, the USPTO will not register cannabis-related trademarks because the Lanham Act prohibits registration. This is true because certain legal requirements must be met before a trademark is eligible for federal registration. Among these requirements are that the trademark be used in interstate commerce AND that the use be LEGAL. These are generally referred to as the use-in-commerce and lawful-use requirements.
The use-in-commerce requirement is often easy to establish. In simple terms, the trademark must be affixed to a product or packaging or used with advertising of goods or services that are sold in interstate commerce. That is, the products or services are sold in multiple States with the goods or services crossing State lines. The lawful-use requirement is also often easy to establish. U.S. law allows the manufacture and sale of almost everything. As such, most “uses” will be lawful. Cannabis is one now-famous contrary example. Since cannabis is illegal at the federal level, it is nearly impossible to establish the lawful-use requirement for federal trademark registration.
Cannabis medical-use exceptions
The above-described rules apply to ANY substance that is banned and made illegal under the CSA. However, there is a lawful-use exception where the substance can be used — and IS used — for medical purposes. Morphine, for example, is a controlled substance listed as illegal and banned by the CSA. However, morphine is used extensively in the medical field. As such, many companies manufacture morphine and, importantly, sell it under branded and trademarked names like Duramorph, Infumorph, and Mitigo. See here.
Under this exception, it is possible for cannabis that is for medical use only to satisfy the lawful use requirement for trademark registration under the Lanham Act.
State-level registration
With some nuanced differences, the same two legal requirements are necessary to register trademarks at the State level in the United States. Nearly every State has a statute that corresponds to the Lanham Act, and nearly all have a use-in-commerce and a lawful-use requirement. At the State level, use in commerce means use of the trademark on goods or with services for sales within the State’s borders. In States that have decriminalized personal cannabis growing and use, the lawful use requirement is also met at the State level. Thus, cannabis-related trademarks can be registered at the State level in States where cannabis is not banned and made illegal.
The Lanham Act, codified at 15 U.S.C. § 1051 et seq., requires that a trademark be “used in commerce” as a prerequisite for federal registration. The USPTO and federal courts have consistently interpreted “use in commerce” to require that the underlying use be lawful under federal law. This interpretation is grounded in the principle that a party cannot acquire federal rights by engaging in federally prohibited activity. The USPTO Trademark Trial and Appeal Board (“TTAB”) articulated this rule clearly in In re PharmaCann LLC, 123 USPQ2d 1122 (TTAB 2017): federal registration is unavailable for goods or services whose sale, distribution, or use is unlawful under the CSA.
The CSA, 21 U.S.C. § 811, classifies marijuana as a Schedule I controlled substance — defined as having no accepted medical use and a high potential for abuse. Unless and until Congress reclassifies or deschedules marijuana, or creates an express carve-out in the Lanham Act, the USPTO will continue to refuse registration for cannabis-related trademarks.
The USPTO’s refusal is not limited to the word “cannabis” or the marijuana plant itself. The refusal extends to any trademark for goods or services whose manufacture, distribution, sale, or use is unlawful under the CSA. This means:
The Agriculture Improvement Act of 2018 (“Farm Bill”), Pub. L. 115-334, removed hemp — defined as cannabis sativa L. with no more than 0.3% THC on a dry-weight basis — from the CSA’s definition of marijuana. This created an important and distinct category: hemp-derived products, including CBD isolates and broad-spectrum hemp extracts, are no longer federally illegal for purposes of trademark registration. However, businesses marketing hemp-derived products must be careful to clearly distinguish their products from marijuana-derived cannabis. Trademarks on hemp products have been registered at the USPTO, but applications that blur the line or that cover both hemp and marijuana products will face refusals.
While federal registration remains unavailable for marijuana-related marks, state-level trademark registration provides meaningful protections within legalized states. Currently, 24 states plus Washington D.C. have legalized recreational marijuana, and 38 states have medical marijuana programs. All of these states offer their own trademark registration systems that function independently of the USPTO. A cannabis trademark registered in California, Colorado, or Michigan provides:
Cannabis businesses also acquire common law trademark rights through actual use in commerce — even without any registration. Common law rights are geographically limited to the area of actual use, but they provide a real legal foundation for infringement claims. Several cannabis trademark disputes have been litigated in state courts on common law grounds, and courts in legal states have generally been willing to apply trademark principles to cannabis businesses.
The legal landscape may change. The DEA proposed reclassifying marijuana from Schedule I to Schedule III in 2024, a process that was still pending as of 2026. A Schedule III classification would not automatically legalize cannabis under the CSA — Schedule III substances are still controlled and regulated — but it could remove the “no accepted medical use” classification that underpins much of the USPTO’s refusal rationale. Cannabis business owners should monitor federal legislative developments closely. In anticipation of potential federal legalization, building a state-level trademark portfolio now — with clearly documented dates of first use — is the most important strategic step a cannabis brand can take.
If you have questions about trademark law, the experienced attorneys at Revision Legal can help. We represent businesses, entrepreneurs, and individuals across the country. Contact us through the form on this page, visit our trademark law practice page, or call us at (855) 473-8474.
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