Following the passage of the 2018 Farm Bill and the legalization of hemp in the U.S., federal agencies are beginning to line up their regulatory approach to this burgeoning industry. The U.S. Department of Agriculture (USDA) is preparing its guardrails for state-sanctioned hemp programs, and, now, the United States Patent and Trademark Office (USPTO) has clarified how it will handle trademarks for hemp businesses.
In short, hemp businesses (including plant-touching businesses) are able to apply for trademark registration—as long as their business falls outside the Food and Drug Administration’s (FDA) regulations of hemp-derived CBD as a food or beverage ingredient. The FDA oversight is part of a broad gray area still in need of clarification post-Farm Bill.
For now, many hemp businesses have a shot at claiming their mark.
“We’ve been waiting since the Farm Bill was passed on how that would impact the trademarks used in connection with these particular products and services,” said David Gold, intellectual property litigation attorney at Cole Schotz.
The USPTO, which oversees patents and trademarks, splits its approach to controlled substances in the U.S. The patents office will work with companies that are using federally controlled substances, like whole-plant cannabis (and especially THC). The trademark office, however, will not work with those companies.
“This does not cover a very large segment of the industry. This doesn’t cover anything that’s subject to the FDA.” – David Gold
Now that hemp is no longer listed as a Schedule-I substance, the USPTO is opening the window for trademark applications relating to hemp and hemp-derived compounds. (Hemp is legally defined as the cannabis plant containing less than 0.3-percent THC.)
“Frankly, this is exactly what we anticipated the result would be—down to the language that now needs to be included in the application,” Gold said, referring to the THC