Cannabis Conundrum – How Do I Protect My Brand?

This is a guest post from Ashley Long.  Ashley has been working with clients on trademark issues related to the newly legalized cannibis industry in Washington.  Ashley was also our guest on The Law of Startups Podcast this week.  


Cannabis Conundrum – How Do I Protect My Brand?
 
By Ashley K. Long
 
Washington, Oregon, and Colorado – three states that have given the green light (pun intended) to recreational cannabis.  As cannabis retailers and processors crop up around these states, business owners want to know: how can we protect our brands? 
 
Federal trademark registration for cannabis specific goods and services is not yet permitted.  However, several regions appear to be permitting registration of trademarks at the state level. 
 
Oregon and Colorado law permit registration of trademarks for goods or services which are “in use” in those states.  In other words, businesses already selling or producing cannabis branded products in those jurisdictions can apply for state level trademark registrations.  If you haven’t had retail activity around a cannabis brand, you may not yet be eligible for state trademark registration in either of those jurisdictions. 
 
Washington will allow you to reserve a trademark name for up to a year.  Once your trademark is being used in the state, and before the expiration of the reservation period, you have to make certain to file for the state registration of your trademark.  Otherwise, you’ll lose your place in line.
 
A quick note on federal trademark registration – even if a business can’t apply directly for cannabis related goods and services, they may be able to seek registration of their trademark for ancillary goods/services.  For example, if the business sells a brand of cannabis and non-cannabis edibles, it may be able to get a state registration for the cannabis products and a federal registration for the non-cannabis products. 
 
The landscape of cannabis law is changing rapidly.  As more states authorize recreational marijuana use and sale, other areas of the law will continue to evolve.  If you’re interested in learning more about how to protect your cannabis brand, make sure to consult your legal counsel.