On December 20, 2018, Pres. Trump signed into law the Agricultural Improvement Act of 2018 (the “2018 Farm Bill”). The new law provides important agricultural and nutritional policy extensions for five years. The most interesting changes involve the cannabis plant, and its potentially significant impact on the application for and registration of trademarks used in interstate commerce on or in connection with the sale or rendering of hemp products and related services.
More specifically, the 2018 Farm Bill allows hemp cultivation and the transfer of hemp-derived products across state lines for commercial or other purposes. It also puts no restrictions on the sale, transport, or possession of hemp-derived products, so long as those items are produced in a manner consistent with the law.
Hemp comes from the same plant that produces marijuana, except that under the 2018 Farm Bill, hemp is no longer illegal provided that its THC (tetrahydrocannabinol) concentration is less than 0.3 percent dry weight. THC is the compound of the cannabis that provides the user with feeling of euphoria. A concentration level of 0.3 percent or higher is considered to be marijuana which remains illegal under the Controlled Substances Act of 1970 (CSA). The CSA effectively banned cannabis of any kind.
Prior to the enactment of the 2018 Farm Bill, the U.S. Trademark Office (USPTO) refused to register a trademark used in interstate commerce on services or products that violated any federal law. The 2018 Farm Bill changed that sweeping prohibition. Now, the U.S. Trademark Office may register qualified trademarks subject, in pertinent part, to the following conditions:
First, applications to register trademarks for hemp goods or services must be submitted to the U.S. Trademark Office on or after December 20, 2018. Applications filed prior to then will be rejected on the grounds that the products or services violate applicable federal law. However, in such cases, the applicant can correct this by: (1) amending the filing date of the application which cannot pre-date December 20, 2018 and, if the application was based upon actual use in interstate commerce, amend filing basis to allege a bona fide intent to use the mark in interstate commerce, and (2) amending the identification of goods or services to allege that the product contains a THC concentration level of less than 0.3%. In addition, those with applications filed prior to December 20, 2018 must also provide the U.S. Trademark Office with additional information to ensure that the applicant’s products meet the requirements of the 2018 Farm Bill. Hemp producers also must meet any applicable local government licensing requirements.
Finally, the USPTO will continue to reject trademarks for products in which cannabidiol (CBD) is used in foods, beverages, dietary supplements, pet treats and so forth and applies to all products containing CBD, regardless of whether the CBD comes from hemp. CBD, cannabis and other cannabis-derived compounds are regulated by the U.S. Food and Drug Administration (FDA). Such products cannot be introduced lawfully into interstate commerce and are unlawful even under the 2018 Farm Bill. There is some indication that the USPTO will defer to the FDA for any applications involving hemp that is added to food, beverages and other products.
It is apparent that the U.S. Trademark Office and federal government will continue to grapple with the legalities of cannabis products, including hemp. It is therefore extremely important and prudent for anyone in this industry to seek expert advise from a trademark attorney experienced in this area of law.
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