This is an exciting time for cannabis entrepreneurs as the US government is poised to reclassify cannabis as a Schedule III drug in a move that recognizes cannabis’ medical and therapeutic uses and may open the door for new cannabis trademark registrations. Capitalizing on these changes is critical for cannabis proprietors to elevate and grow their brands in the expanding cannabis market. As previously posted, cannabis trademarks remain federally registrable with many goods and services, such as skin topicals, batteries, packaging, apparel, smoker’s articles, retail services, consulting services, entertainment services, and more.
With the reclassification of cannabis, however, it remains uncertain how the United States Patent and Trademark Office (USPTO) will respond in connection with trademark applications for cannabis goods. Under current law, registration of marks used with cannabis goods having more than 0.3% THC is prohibited. The switch to Schedule III could permit registration of such marks, but these opportunities remain uncertain for other reasons. For example, even if cannabis trademark registration is no longer prohibited by the Controlled Substances Act, it may still be limited under the Federal Food, Drug, and Cosmetic Act (FDCA) pending FDA approval of cannabis products (like approval required for pharmaceuticals). Moreover, there is no current timeline or guidance available for when the USPTO may implement changes to its registration policies for cannabis.
Strategic registration of cannabis trademarks is an important way to gain an advantage over your competitors. Cannabis entrepreneurs should capture the prudent protections currently available to them while preparing to capitalize on any broadened protections after cannabis is rescheduled.
