A significant step was taken with the issuance last week of a memo on CBD products by the U.S. Patent & Trademark Office (USPTO) — a move anticipated ever since hemp-derived CBD was legalized by the passage of the 2018 Farm Bill in December. This lag between Congressionally approved legislation and regulations promulgated by the relevant oversight agencies has resulted in persisting legal ambiguities about the status of CBD.
It takes pains to emphasize that no marijuana-derived products have been daylighted: “[T]he USPTO refuses registration when an application identifies goods encompassing CBD or other extracts of marijuana because such goods are unlawful under federal law and do not support valid use of the applied-for mark in commerce.”
However, it recognizes changes to the 1946 Agricultural Marketing Act and 1970 Controlled Substances Act instated by the new Farm Bill, which will affect trademark applications filed after it was signed into law: “For applications filed on or after December 20, 2018 that identify goods encompassing cannabis or CBD, the 2018 Farm Bill potentially removes the CSA as a ground for refusal of registration, but only if the goods are derived from ‘hemp.’ Cannabis and CBD derived from marijuana (i.e., Cannabis sativa L. with more than 0.3% THC on a dry-weight basis) still violate federal law, and applications encompassing such goods will be refused registration regardless of the filing date.”
Patent Office Catches Up with Federal Law — But the FDA Lags Behind
The memo contains a caveat noting the certain CBD products (specifically foods and medicinal preparations) remain officially illegal until the Food & Drug Administration (FDA) updates its own regulations: “Applicants should be aware that even if the identified goods are legal under the CSA, not all goods for CBD or hemp-derived products are lawful following the 2018 Farm Bill. Such goods may also raise lawful-use issues under the Federal Food Drug and Cosmetic Act.”
The memo also walks a fine line concerning whether applications were filed before or after the Farm Bill took effect.
While acknowledging that those filed before must be rejected, it basically invites applicants to re-file: “For applications filed before December 20, 2018 that identify goods encompassing CBD or other cannabis products, registration will be refused due to the unlawful use or lack of bona fide intent to use in lawful commerce under the CSA… However, because of the enactment of the 2018 Farm Bill, the goods are now potentially lawful… Therefore, the examining attorney will provide such applicants the option of amending the filing date and filing basis of the application to overcome the CSA as a ground of refusal.”
The Arbitrary Hemp-Marijuana Border
Evoke Law, a blog that has been keeping a close eye on branding issues concerning cannabis, anticipates a controversy not explicitly addressed in the USTPO memo — that concerning the somewhat arbitrary border between “marijuana” and “hemp.”
“While we support the Trademarks Office’s position that the scope of resulting registrations should be limited to goods compliant with federal law, we foresee problems tying the identification language to the current federal law,” Evoke writes. “The laws surrounding cannabis, hemp and CBD are anything but well-established and while 0.3% is the current THC limit for cannabis to be considered ‘hemp,’ it is not unthinkable that Congress may raise or lower this number given that new research into the plant that will occur as a result of the 2018 Farm Bill.”
This is mostly an issue if the THC limit is dropped: “[I]f an applicant amends its identification to state that the CBD is derived from hemp with not more than 0.3% THC, and the lawful limit is subsequently lowered to 0.2% THC, this legislative shift would unexpectedly make the identified goods and services unlawful.”
But realistically, pressure from the industry is likely to go in the other direction — toward raising the limit, which would certainly unleash a flood of new trademark applications.
Agriculture Department Catching Up Too
A similar significant step was taken last month, when the US Department of Agriculture’s Plant Variety Protection Office (PVPO) announced that it will “start accepting applications of seed-propagated hemp for plant variety protection.”
The PVPO provides intellectual property protection to breeders of new varieties of seeds and tubers. Under the Plant Variety Protection Act of 1970, the PVPO has authority to grant certificates that protect varieties for 20 years (or 25 years for vines and trees). Certificate holders have rights to bar others from marketing their varieties, to manage the use of their varieties by other breeders and to “enjoy legal protection of their work.”
The PVPO statement of April 24 that these protections will be extended to some cannabis varieties will certainly be noted by the industry and advocacy groups alike.
Of particular note in the latter category is the Open Source Seed Initiative, which is seeking to establish various cannabis strains as part of the intellectual commons and keep them “copyleft” — preventing them from being patented by agbiz as the legal industry takes off.
TELL US, will you be filing a CBD-related patent?