With the growing popularity of hemp-derived cannabidiol (hemp CBD) items in e-commerce, the U.S. Patent and Trademark Workplace (USPTO) has seen a considerable influx of hallmark applications used in association with CBD items. This post briefly addresses the reasons for these rejections and talks about the trademark securities currently available to the market.
To protect federal trademark registration, a mark’s usage in commerce need to be lawful under federal law.
Although the Agricultural Enhancement Act of 2018 (the 2018 Farm Expense) legislated the production of hemp and hemp derivatives, consisting of hemp CBD, by getting rid of hemp from the Controlled Substances Act’s definition of cannabis, the new law did not legalize the production of hemp CBD items. Instead, the 2018 Farm Bill specifically maintained the FDA’s authority to manage these items under the Food, Drug and Cosmetic Act ( FDCA).
As I have actually gone over in this column ( here and here), the FDA takes the firm position that it is illegal to offer and market in commerce CBD food and dietary supplements, pursuant to the FDCA and the Drug Exclusion Guideline Specifically, the FDA argues that since CBD was approved and investigated as a drug component before it was sold and marketed as a food or a dietary supplement, these products might not be legally introduced in commerce. The USPTO, which postpones to the FDA’s position, opines that “registration of marks for foods, beverages, dietary supplements, or family pet treats including CBD will still be declined as illegal under the FDCA, even if obtained from hemp.”
Cosmetics consisting of hemp CBD, nevertheless, are in a more ambiguous area, as the FDA has indicated that the sale and marketing of these items may be permissible. In assistance launched on its site, the FDA offers that this classification of item is legal so long as they are not adulterated, mislabeled, or intended to affect the structure or function of the body, or to identify, treat, reduce, treat, or prevent disease ( i.e., intended as a drug).
For that reason, when looking for federal trademark protection, hemp CBD companies must be very clear about the kind of cosmetic product they are selling and wishing to secure. While a hemp CBD cosmetic item in Class 003 (soaps, perfumery, important oils, cosmetics, hair creams, and dentifrices) may be acceptable and eligible for defense, a hemp CBD salve meant to ease muscle discomfort in Class 005 (pharmaceuticals and other preparations for medical or veterinary purposes) won’t likely certify.
So how can hemp CBD business secure their brands when federal hallmark security is unavailable?
One choice is to secure registration for ancillary items or services that do not break federal law. For example, if an organisation manufactures a hemp CBD drink and produces and offers a non-CBD-infused variation of that drink, business may possibly protect a federal hallmark registration that will cover the non-CBD-infused drink.
Another method is to acquire a state hallmark registration in a state where the sale of hemp CBD items is permitted. Even though state hallmark protection is geographically restricted to the state of the registration, state hallmarks tend to offer more defense and legal solutions than common law rights.
So, till the FDA revisits its policy on the sale and marketing of hemp CBD products, especially foods and dietary supplements, the industry will require to count on resourcefulness and trademark attorneys well-versed in hemp and CBD law to protect their brand names.
Nathalie Bougenies practices in the Portland office of Harris Bricken and was named a “2019 Increasing Star” by Super Lawyers Magazine, an honor bestowed on only 2.5%of qualified Oregon lawyers. Nathalie’s practice focuses on the regulatory structure of hemp-derived CBD (” hemp CBD”) products. 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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