moss law provides legal counsel on obtaining and protecting cannabis trademarks.
Develop Your Brand
Trademarks include words, names, symbols, colors, sounds, and smells that help a brand differentiate and distinguish its products or services to consumers. A trademark helps to protect the time, energy, and resources a business invests in establishing a brand by preventing others from using a confusingly similar mark.
Unfortunately, the United States Patent and Trademark Office ("USPTO") routinely denies applications associated with cannabis trademarks that directly touch the plant. There are alternatives such as registering ancillary products or applying for state trademarks. Cannabusinesses that operate in the cannabis space but do not touch the plant have a track record of success when registering for trademark protection with the USPTO.
A federally registered trademark provides its owner with a number of protective benefits including:
- Constructive notice to the public of the claim to the mark and a presumption of ownership;
- A presumption of the exclusive right to use the mark nationwide in connection with the goods or services specified in the registration;
- The ability to use the US registration as a basis for priority registration in other jurisdictions; and
- The ability to record the US registration with the US Customs Service to prevent importation of infringing goods
Other Types of Intellectual Property
Copyright covers the rights a creator has in her literary or artistic works including but not limited to music, paintings, books, sculpture, film, and computer code. A copyright arises at creation and registration is not necessary. However, registration of a copyright helps protect against infringement.
Patents cover inventions and grant the patent holder "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States. Patents typically last for 20 years from the date on which the application was filed.
Patents are broken into three categories, design, utility, and plant. Plant patents may be granted to anyone who, " invents or discovers and asexually reproduces any distinct and new variety of plant."