With the growing appeal of hemp-derived cannabidiol (hemp CBD) products in e-commerce, the U.S. Patent and Hallmark Office (USPTO) has actually seen a significant influx of hallmark applications utilized in association with CBD products. Nevertheless, a lot of these applications have actually been rejected by the USPTO. This article briefly addresses the reasons for these rejections and discusses the trademark protections currently readily available to the market.
To secure federal trademark registration, a mark’s use in commerce should be legal under federal law.
Although the Agricultural Enhancement Act of 2018 (the 2018 Farm Expense) legislated the production of hemp and hemp derivatives, including hemp CBD, by getting rid of hemp from the Controlled Substances Act’s meaning of marijuana, the new law did not legalize the production of hemp CBD items. Rather, the 2018 Farm Bill expressly protected the FDA’s authority to control these items under the Food, Drug and Cosmetic Act ( FDCA).
As I have talked about in this column ( here and here), the FDA takes the company position that it is unlawful to offer and market in commerce CBD food and dietary supplements, pursuant to the FDCA and the Drug Exemption Rule Particularly, the FDA argues that since CBD was authorized and examined as a drug active ingredient prior to it was offered and marketed as a food or a dietary supplement, these items might not be legally introduced in commerce. Consequently, the USPTO, which accepts the FDA’s position, opines that “registration of marks for foods, drinks, dietary supplements, or pet treats containing CBD will still be refused as illegal under the FDCA, even if originated from hemp.”
Cosmetics containing hemp CBD, nevertheless, are in a more unclear area, as the FDA has indicated that the sale and marketing of these items might be acceptable. In assistance released on its site, the FDA provides that this category of product is legal so long as they are not adulterated, mislabeled, or meant to impact the structure or function of the body, or to identify, cure, alleviate, deal with, or prevent disease ( i.e., intended as a drug).
For that reason, when applying for federal trademark protection, hemp CBD business should be really clear about the kind of cosmetic product they are selling and wishing to safeguard. While a hemp CBD cosmetic item in Class 003 (soaps, perfumery, essential oils, cosmetics, hair lotions, and dentifrices) may be appropriate and eligible for protection, a hemp CBD salve planned to ease muscle discomfort in Class 005 (pharmaceuticals and other preparations for medical or veterinary functions) will not likely qualify.
So how can hemp CBD companies protect their brand names when federal hallmark defense is unavailable?
One option is to secure registration for supplementary products or services that do not breach federal law. If an organisation produces a hemp CBD drink and produces and sells a non-CBD-infused variation of that drink, the organisation might possibly protect a federal trademark registration that will cover the non-CBD-infused drink.
Another method is to get a state hallmark registration in a state where the sale of hemp CBD products is allowed. Even though state hallmark defense is geographically limited to the state of the registration, state hallmarks tend to offer more defense and legal remedies than common law rights.
So, until the FDA reviews its policy on the sale and marketing of hemp CBD products, especially foods and dietary supplements, the industry will need to depend on ingenuity and hallmark lawyers well-versed in hemp and CBD law to protect their brands.
Nathalie Bougenies practices in the Portland workplace of Harris Bricken and was called a “2019 Rising Star” by Super Attorney Publication, an honor bestowed on only 2.5%of eligible Oregon attorneys. Nathalie’s practice focuses on the regulative framework of hemp-derived CBD (” hemp CBD”) items. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and guidelines surrounding hemp and hemp CBD items.
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