In the past, many CBD companies applying for federal trademark protection from the USPTO had their requests declined because all forms of marijuana were federally illegal. With the enactment of the 2018 Farm Bill, industrial hemp and all its derivatives became legal and this has opened the door to CBD businesses to get trademark protection. However, not all CBD businesses are eligible for this protection as the following discussion reveals.
In new guidelines issued by USPTO, all trademark protection applications must comply with U.S. federal law. To that end, companies that filed their trademark applications before the 2018 Farm Bill became law have been advised to modify their applications in three key areas.
First, applicants can modify the date on which they submitted their trademark protection application so that the submission date isn’t indicated as earlier than the date on which the Farm Bill was signed into law (December 20, 2018).
The second area where prior applications can be modified has to do with the basis of that trademark application. Some applicants had indicated that their CBD products were “in-use” and the USPTO is advising that they change this to “intended-for-use.”
Applications should also be changed in the aspect of the identification of the product. This will invariably mean declaring that the product contains less than 0.3 percent THC content to show that the product complies with federal law.
Trademark applicants who filed their papers before the coming into force of the 2018 Farm Bill are also free to abandon their previous application and instead send a fresh application that meets all the requirements in the updated guidelines.
As for CBD products that are used or intended to be used as cosmetics, supplements or food ingredients, the USPTO says that pre-market approval must first be obtained from the FDA before such a product can be eligible for federal trademark protection.
Since the FDA hasn’t released its alternative guidelines for the use of CBD in such a way, it remains difficult for companies to register their trademarks federally.
Furthermore, the guidelines issued by USPTO could also change once the FDA rules on CBD are out. This arises because the 2018 Farm Bill gave the FDA authority to regulate CBD products, so what the FDA says about those products will determine how other federal agencies respond.
For now, any space ceded to players within the CBD industry is a welcome breather and analysts believe that industry actors like Earth Science Tech Inc. (OTCQB: ETST) and Geyser Brands Inc. (TSX.V: GYSR) welcome this move to offer federal trademark protection to CBD businesses. This is yet another step towards embracing these businesses into the fold of other legal businesses.
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