Filing Trademark Applications for Hemp After 2018 (Dec.) Farm Bill

The Farm Bill was signed into law on December 20, 2018. The Farm Bill amended the Agricultural Marketing Act of 1946. It changed certain federal authorities relating to the production and marketing of hemp, defined as cannabis (cannabis sativa L.) and derivatives of cannabis with very low concentrations of psychoactive compound delta-9-tetrahydrocannabinol (THC). Hemp (cannabis plants and derivatives such as CBD) as defined under the Farm Bill is no longer an illegal substance under federal law (under the Controlled Substance Act). On May 2, 2018, the USPTO issued an examination guide to provide clarification regarding the examination procedures for goods or services involving cannabis.

Section 297A of the Farm Bill of 2018 defines hemp as "the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3% on a dry weight basis." In other words hemp is no longer considered to be marijuana under the Controlled Substance Act. Moving forward trademark applicants who apply for goods derived from hemp (as defined in the Farm Bill of 2018), must specify that it contains less than 0.3% THC in the identification of goods.

However, applicants should be cognizant of the fact that even though the goods may be compliant under the Controlled Substance Act, it is still possible that the hemp-derived goods may not be lawful. See the firm page entitled, Trademark Use Must Be Lawful Use In Commerce, for additional information about the lawful requirement for federal trademark protection. An area of concern will be whether the goods qualify under the Federal Food Drug and Cosmetic Act (FDCA). The Farm Bill of 2018 did not impact the Food and Drug Administration's ("FDA") authority to regulate goods containing cannabis or cannabis-derived compounds under the FDCA. Specifically under the FDCA, a drug or substance undergoing clinical investigations cannot be used in foods or dietary supplements without the FDA's approval. Cannabidiol ("CBD") is an active ingredient in FDA approved drugs and is undergoing clinical investigations. Thus, if a trademark application identifies foods, beverages, dietary supplements, or pet treats containing CBD, it will be refused as unlawful under the FDCA (even if derived from hemp as defined by the Farm Bill of 2018).

Regarding trademark applications filed before December 20, 2018 (the enactment date of the Farm Bill of 2018) that include CBD goods or other cannabis related goods, will be refused registration, regardless of the filing basis. The basis for the refusal will be that at the time of the filings, the goods violated federal law. Now, in light of the issuance of the Farm Bill, the goods could potentially be compliant with the law if the goods are derived from hemp (containing less than 0.3% of THC). Thus, the Examining Attorney will give the applicant the opportunity to amend the filing date and the filing basis. If the applicant chooses to amend the application, the Examining Attorney will conduct a new search of the USPTO database for conflicting marks (based on the new filing date) in either a pending application or registration. Of course, the applicant can choose to file a new application instead, and let the current application go abandoned.

Lastly, if the trademark application identifies production of cannabis, qualifying as "hemp" under the Farm Bill, the applicant can also anticipate questions concerning the applicant's authorization to produce hemp. The applicant will be required to enter certain statements into the record showing the applicant meets the Farm Bill's requirements to produce hemp. If the applicant's goods do not meet the definition of "hemp" under the Farm Bill, but instead are classified as marijuana, the application will be refused as unable to meet the "lawful use" requirement. See the firm's blog post entitled, Trademarks And Marijuana Related Goods And Services, for an overview of the USPTO's policies pertaining to applications identifying goods related to marijuana. If you have questions, concerning trademark applications for cannabis related goods, please contact the firm for a courtesy consultation.