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For many cannabis brands, licensing their trademarks can be a savvy business move (for more information on cannabis trademarks generally, check out our webinar, Trademarking Cannabis: Cutting Through the Legal Haze). But it also comes with its own set of challenges. Unlike in most industries, cannabis operates in a complicated legal gray zone — which means you can’t just grab your standard trademark agreement and call it good.
Here’s what you need to know if you’re thinking about licensing your cannabis brand.
Federal law isn’t on your side
Under federal law, cannabis with more than 0.3% THC (that is, marijuana) is still classified as a controlled substance. Even some products with 0.3% THC or less — including those derived from hemp — may run afoul of the Federal Food, Drug, and Cosmetic Act (FDCA), particularly if they’re sold as food, beverages, or dietary supplements. As a result, the U.S. Patent and Trademark Office (USPTO) won’t register trademarks used on federally unlawful products, even if those products are fully legal in certain states.
That makes federal trademark protection tricky for most cannabis
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