Building a strong and distinctive brand identity for your business is crucial for driving sales, fostering consumer loyalty, and standing out in any industry, and more so for emerging and rapidly evolving sectors such as cannabis and psychedelics. Trademarks are essential for protecting your brand's name, logo, and overall image. By understanding what cannabis-related businesses can apply for trademark protection and the importance of creating and protecting strong trademarks, cannabis companies can differentiate themselves, protect their intellectual property and position themselves for long-term success.

Your chances of successfully registering your trademark and protecting your brand depend on the trademark category, among other factors. Not all trademarks are registerable, meaning not all words, logos, slogans, etc. can be registered as a federal trademark with the United States Patent and Trademark Office (USPTO). Read on to familiarize yourself with the five types of trademark categories, including generic trademarks, descriptive trademarks, suggestive trademarks, arbitrary trademarks, and fanciful trademarks.

Generic Trademarks

Generic trademarks often consist of words so commonly associated with specific goods and services that no one should be able to claim exclusive rights to them. Thus, generic trademarks are not registrable and can never receive common law or federal trademark protection. If you own a dispensary located in Minnesota and decide to call your brand “Cannabis Dispensary,” you have a generic trademark that cannot be registered. Another example is if you are a commercial salt seller and decide to call your brand “Salt.”

Occasionally, brands can become so successful that they become “genericized.” This occurs when a brand has become so prevalent in the market that consumers only think of that particular brand name’s trademark when thinking of the same goods or services made by others. An example of a genericized trademark is the word Aspirin. Bayer used to own a trademark for Aspirin, but usage became so common that the mark was determined to be generic.

Descriptive Trademarks

Descriptive marks are typically adjectives that describe a product or service, such as location-based words, surnames, and alternative spellings. If you are a champagne manufacturer and decide to call your brand “Sparkly Wine,” you have a descriptive trademark. Sparkly and wine both refer to the features and qualities of champagne. Examples of this type of trademark for the cannabis industry include “Green Buds” or “Los Angeles Chronic” — which is also geographically descriptive.

If the trademark is deemed descriptive, it can be registered on the Trademark Supplemental Register, unless acquired distinctiveness can be proven at the time of filing. Acquired distinctiveness, or secondary meaning, means that consumers recognize the mark as the source of the brand. For example, most consumers who see a red sole on a high-heeled shoe immediately recognize that shoe as a Louboutin. This is acquired distinctiveness or secondary meaning. Once it gains secondary meaning, it's eligible for registration on the Trademark Principal Register. Secondary meaning means that the mark has become distinctive or that consumers associate it with the specific goods and services it represents. Achieving secondary meaning typically involves long-term use and significant expenditure on brand awareness.

Suggestive Trademarks

Suggestive marks describe a characteristic or aspect of the goods or services that evoke a connection between the trademarked product or service and its name for the consumer. JAGUAR is an example of a suggestive mark. When people think of the jaguar animal, they think of a fast and sleek animal. This is exactly what JAGUAR, the brand, wanted: their consumers to associate those qualities with their cars. “Royal Highness” is a good example of a suggestive trademark for the cannabis industry, as the dispensary name hints at the type of products sold to cannabis consumers while suggesting a premium “royal” brand to the consumer.

Suggestive marks are very popular due to their tendency to associate a brand quality with the actual goods and services. However, they fall mid-spectrum on the trademark scale because what may seem suggestive to you may be merely descriptive to your trademark examining attorney. The distinction between descriptive and suggestive marks is often a fine line.

Arbitrary Trademarks

Arbitrary trademarks are strong marks composed of common words wholly unrelated to the good or service for which the trademark is used. The most famous example of an arbitrary mark is APPLE. An apple is a real object, and the fruit has nothing to do with the fancy computers or iPhones that we all have today. Fun fact, the Apple trademark is now worth nearly $40 billion dollars. Examples in the cannabis industry include “OZONE” and “ROAM.”

Fanciful Trademarks

Fanciful trademarks are typically unique or made-up marks or words. This category of trademark is the hardest to challenge and provides a high likelihood of registration, as they are invented solely to function as trademarks. An example of a fanciful trademark is Clorox.® Clorox is a made-up term, yet it has been applied to a commercial bleach brand. Examples of fanciful trademarks in the cannabis industry include “WANA” and “REDECAN.”