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- Title
BLUNT ADVICE: A CRASH COURSE IN CANNABIS TRADEMARKS.
- Authors
GILBERTSON, JOHN
- Abstract
Cannabis brands are going mainstream, and they want trademark protection. Getting it, however, is easier said than done. Because cannabis is largely illegal at the federal level, the United States Patent and Trademark Office (USPTO) will not bestow federal registration on trademarks used in connection with products having greater than 0.3% THC content--even in states which have legalized recreational cannabis use. This presents a problem to cannabis brands, because federal registration offers the broadest trademark protection. The effect is that cannabis brands must navigate a confusing patchwork of state-level trademark laws to cobble together whatever common-law rights they can muster. There are, however, a number of recent and continuing developments in the law, the knowledge of which will enable a savvy cannabis company to maximize its brand protection in the face of an uncertain landscape. For example, the Supreme Court has demonstrated a marked willingness over the past few decades to curtail government restrictions on commercial speech. This includes two recent decisions, Matal v. Tam and Iancu v. Brunetti, in which the Court struck down two substantial Lanham Act provisions--the disparagement clause and the immoral/scandalous bar--as unconstitutional speech restriction. This deregulatory trend in the Court's commercial speech jurisprudence bodes well for cannabis generally, which has often been (and continues to be) derided in some segments of society as nefarious or subversive. Because of this, dilution has the potential to cause problems for cannabis companies if famous brands feel that the distinctiveness of their names or products are being blurred or tarnished by pot-centric products. This would be true even if federal registration were possible, and cannabis brands are particularly susceptible to dilution given the industry's longstanding practice of naming popular cannabis products after well-known brands--Skywalker OG, anyone? Dilution, however, shares much in common with the now-defunct disparagement and immoral/scandalous provisions, and this Article argues that Tam and Brunetti have likely provided the blueprints for a successful challenge to the dilution provisions. This article concludes with a number of practical tips on how to maximize common-law trademark protections to help cannabis brands stake out their trademark turf as widely as possible, which will come in handy if and when federal trademark registration becomes possible. In the meantime, having a strong grasp of this idiosyncratic area of the law will enable cannabis brands to maximize brand protection in the face of an evolving landscape.
- Subjects
CANNABIS (Genus); TRADEMARK application &; registration; COMMERCIAL speech
- Publication
IDEA: The Intellectual Property Law Review, 2020, Vol 60, Issue 3, p502
- ISSN
0019-1272
- Publication type
Article