Marijuana Patent Can Be Tricky Business

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Marijuana Patent Can Be Tricky Business

Despite the growing number of states that have now legalized medical and recreational marijuana and the booming industry that has been created, the plant remains illegal on a federal level. Marijuana businesses are one of the affected. Businesses are still paying the cost of prohibition, unable to legally obtain a marijuana patent or trademark. November saw 4 states, including California and Nevada, legalize recreational marijuana, making 20 percent of the nation marijuana friendly. Another 3 states legalized medical marijuana bringing the number of states with legal marijuana up to 28, over half of the country. The latest Gallup poll shows that 60 percent of the country is in favor of full legalization. Yet here we stand; a plant that is both safer and healthier than cigarettes and alcohol, remains illegal under the Controlled Substances Act.

Refusal of Marijuana Patent Applications

uspto has a blanket refusal of marijuana patent applications in place
The USPTO has a blanket refusal of marijuana patent applications in place.

One of the many problems that occurs as a result of this is that marijuana businesses can’t trademark, patent or protect their products and brands.  The United States Patent and Trademark Office (USPTO) will not approve a marijuana patent or trademark due to the fact that the plant remains federally illegal. At first they were less strict about this rule, but they got flooded with applications and the office couldn’t keep up. As a result, all marijuana related applications were denied and fees were returned.

Placing a Patent on Legal Products

With some creativity and smarts, there can be ways of working around these restrictions. Approval of a patent or trademark is dependent on the USPTO confirming that your product is being used legally for legal purposes. This makes an outright marijuana patent or trademark a less than ideal objective. You could, however, get your logo trademarked to go onto any legal items, such as clothing and stationary. So long as it’s clear that your product is used legally, you shouldn’t run into trouble. If you’re trying to patent a product that is often used for marijuana, like a vaporizer or grinder, you will need to convince the USPTO that it is used for tobacco, herbs or something else. In order to do this, you may need to be creative or discreet about including anything that would give away that your product could be used for marijuana.

Risks in Marijuana Companies Patenting Non-Marijuana Products

patenting a logo for cannabis themed clothing
Patenting a logo for cannabis-themed clothing is as close as some companies can get to patenting marijuana products.

There are still risks involved with attempting to place a trademarked brand on non-marijuana related products such as pens as a means of securing the logo. The trademark will secure the logo with those particular products but doesn’t guarantee security with marijuana related products too. Essentially it can ward off competition from using the logo and put the trademarking company in a good position to secure the logo should marijuana become legal. Another factor a company must consider is that the trademarked items must be sold. If they don’t sell well, the company will not be able to keep their trademark. In this case, it’s wise for them to choose a product that somewhat relates to what the company does and represents.

Ultimately, getting a trademark or patent with the USPTO is a complex and delicate process. The best approach is to hire an attorney who is experienced in these matters and can help you to get the best results for you.

 

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