The United States Patent and Trademark Office recently announced that it will accept trademark applications for hemp-based products. This is a departure from last year when we discussed strategies for brand name owners to secure some trademark protection for any cannabis-based product. Last year, all products containing any part of the cannabis plant were illegal under federal because marijuana was on the federal list of controlled substances.
The 2018 Farm Bill changed the definition of marijuana to exclude hemp. Many people may not know that hemp and marijuana are different. While both plants contain cannabinoids, hemp contains a very low concentration of THC (0.3% or less) whereas marijuana contains concentrations of THC ranging from 15% – 40%. THC is the cannabinoid that induces psychoactive effects and gives the sensation of the user getting “high.”
But before every hemp producer gets too excited about this recent development and rushes to the Trademark Office to register all their brand names, a word to the wise. Make sure you can substantiate that your product satisfies the definition of hemp. In other words, your products contain no more than 0.3% of THC.
With marijuana still on the federal list of controlled substances, it is highly likely that that the Trademark Office will want to ensure that the marks being registered are used with hemp, not marijuana-based products. The Trademark Office will pursue this inquiry by issuing a Request for Information.
The examining attorney may ask questions designed to obtain specific information that is factual in nature from the applicant. The examining attorney may also request literature, exhibits, affidavits or declarations, and general information concerning circumstances surrounding the mark, as well as, if applicable, its use or intended use. Requests for information that is not public knowledge, but is within the knowledge of the applicant or available to the applicant, are particularly appropriate.
A trademark applicant has a duty to participate in the examination process by responding directly and completely to each request for information. Failing to respond or to properly respond can result in the abandonment of the application to register the brand name.