California voters approved Proposition 64, legalizing recreational marijuana use, subject to certain restrictions. It is now legal under California law for adults over the age of 21 to grow and process up to six plants for recreational purposes, and to have up to one ounce. Starting in January 2018, it will be legal, under California law, for retail sales of recreational marijuana to adults over the age of 21. (NOTE – Prop 64 did not change federal law, and the possession and/or cultivation of marijuana is still illegal under federal law.)
However, Prop 64 did not address the right to obtain trademark protection in California for the numerous brands of marijuana that are expected to hit the market in 2018.
Currently, it is not possible to obtain a federal trademark on marijuana. Federal trademark law allows for registration of trademarks that are used in commerce. “Commerce” is defined as “all commerce which may lawfully be regulated by Congress.” The U.S. Patent & Trademark Office routinely denies trademark registration for marijuana products because marijuana is illegal under federal law,
Federal Trademark Registration Refused For Cannabis
As just one example (among many) the Patent & Trademark Office refused registration of a trademark application for KUSH RESEARCH. This mark claimed the services of: “scientific research and consulting in the field of medical marijuana”. The description of services itself did not specifically disclose that marijuana was being used illegally under federal law. However, the examining attorney reviewed applicant’s FaceBook page, and found that applicant was working in the field of raw cryogenically extracted cannabis based supplements. The examining attorney refused registration of the trademark because cannabis is illegal under federal law.
Registration May Be Allowed for Related Goods/Services
It may be possible to obtain federal trademark registration on goods or services that are related to cannabis. For example, the mark CANNABIZ has been federally registered. This trademark claims services for computer software for complying with governmental regulations related to medical marijuana. Even though this trademark directly references cannabis, it was allowed to register because the services are not illegal.
California State Law Currently Does Not Allow Trademark Registration For Cannabis
Medical marijuana has been legal under California law for several years. Because these goods are legal under state law, some have attempted to obtain California state trademarks for medical marijuana. However, this also is currently impermissible. California state law requires conformity with federal trademark law. It also states that: “The intent of this chapter is to provide a system of state trademark registration and protection substantially consistent with the federal system of trademark registration and protection under the Trademark Act”. These provisions have been interpreted to mean that the claimed goods or services must be lawful under federal law. Therefore, it has not been possible to obtain a state trademark on marijuana products, including medical marijuana products that are legal under California state law.
AB 64 Would Modify Existing State Law To Create New Classifications for Cannabis Goods/Services
To address this situation, Assembly Bill 64 was introduced. AB 64 would amend California law to create a new classification for cannabis goods or services. The proposed amendment creates a new section of the Business & Professions code — it will be §14235.5. The proposed section reads:
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