Previously, Smith & Hopen wrote an article detailing the challenges an Applicant faces when registering CBD trademarks. For a trademark to be registerable, the trademark must be used in commerce. Specifically, Congress has defined commerce to mean all commerce which Congress may lawfully regulate. See 15 U.S.C. §1127.

Regarding cannabis, cannabidiol (CBD) is a chemical constituent of the cannabis plant that falls under the Controlled Substance Act (CSA). The CSA prohibits the manufacturing, distributing, dispensing, or processing of certain controlled substances. These controlled substances include marijuana. Based on the CSA, the U.S. Patent and Trademark Office (USPTO) has been rejecting trademark applications for CBD. Furthermore, the 2018 Farm Bill removed “hemp” from the CSA’s definition of marijuana as long as the product does not have a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis. See 2018 Farm Bill Section 297A. However, CBD products that are ingested are illegal under the Federal Food Drug and Cosmetic Act (FDCA). Accordingly, ingested products containing CBD do not have a lawful federal use.

What about states where there is a lawful use?

Recently, the Trademark Trial and Appeal Board (TTAB) affirmed a refusal to register a CBD trademark application. In particular, Blue Water Wellness, LLC (Blue Water) filed a trademark an intent-to-use trademark application for CBD2GO. CBD2GO covers Blue Water’s “dietary beverage supplements for human consumption” that contain CBD.

CBD Trademark
CBD2GO U.S. Serial No. 87/893,655

During the examination of Blue Water’s application, the Examining Attorney stated that because CBD is subject to clinical investigation, under the FDCA, introducing the product into interstate commerce is illegal and thus unregistrable. This is irrespective of whether the CBD product is subject to the CSA or legal under state law.

In response, Blue Water argued that while its products do contain cannabidiol, “the sale of CBD food and dietary supplements is lawful under” Florida state law. Blue Water further asserts if/when the illegality of CBD is resolved federally, its mark will then be used legally.

However, the TTAB disagreed, explicitly stating that “[i]n any event, the point is that ‘a bona fide intent to use the mark in commerce is a statutory requirement of a valid intent-to-use trademark application” and that “the intent must be to use the mark in lawful commerce” on the filing date of the application.  

Takeaway for CBD Trademarks

Until CBD is legalized under federal law, applicants are unlikely to register ingestable products containing CBD. While some of an applicant’s products may be unregistrable, it is important to analyze if there are any other “legal” products or services the applicant is providing. By filing and registering trademark applications for legal products (e.g., topicals) and services (e.g., providing information relating to cannabis). By filing for legal products and services, applicants can at least acquire some level of protection on their brand while applicants await the federal government to legalize cannabis federally.

Can you trademark CBD?

Yes, if your products and services have a legal federal use in interstate commerce.

Steven M. Forte, Esq.
Steven M. Forte, Esq.

Steven is a registered patent attorney with the United States Patent and Trademark Office (USPTO) and is a member of the Florida Bar. He devotes his career exclusively to the practice of intellectual property law, focusing on all aspects of patent, trademark, and copyright law.