Protecting Your California Cannabis Intellectual Property

Despite the legality of marijuana in California, actual products may not be eligible for U.S. trademarks, thanks to the fact the plant is still barred under federal law. However, that doesn’t stop Los Angeles marijuana businesses and hemp entrepreneurs from submitting patent and trademark applications.

Los Angeles marijuana lawyers recognize trademark and patent applications to be an important component of legal marijuana businesses – necessary moves that can protect the product brand, increase the company’s value and shield you from legal action pursued by other firms.

As reported in the most recent edition of Marijuana Business Magazine, some companies report their value has been boosted by tens of millions of dollars as a result of obtaining patent and trademark protections, not just here in the U.S. but in other countries as well.

Trademarks and patents serve two distinct purposes. Trademarks insulate your company branding while patents help shield any unique product development.

Why Get a Patent for Your Pot Products?

Patents exist for novel, non-obvious, unique products and “inventions.” These can include not just variations on ancillary products used for cannabis cultivation, sales and consumption, but also unique strains of the plant.

Although patents are submitted to a federal agency (the U.S. Patent & Trademark Office), that agency isn’t obligated as a matter of law to conform to the stipulations of the U.S. Controlled Substances Act (the federal law that classifies marijuana as an illegal – and extremely dangerous – Schedule I narcotic). If you think about it, this makes a lot of sense because many big-name drug companies apply for patent protection before securing the official Ok from the U.S. Food & Drug Administration.

Patent databases show the federal office has granted numerous cannabis-related patents (mostly for non-THC items/procedures) such as methods for CBD extraction, hemp stalk processing and topical CBD creams. A number of others cover things like technologies that don’t actually touch the plant, like ways to better control dosage of certain active ingredients.

Patents aren’t all that expensive either. As Los Angeles cannabis patent lawyers can explain, often the biggest issue, given that cannabis has been around a while, is identifying and establishing that an idea is truly “novel.”

Trademarks are Trickier – Why They May Still Be Worth Pursuing

Trademarks, which protect your name, logo, brand identity and so on, are especially important for any cannabis company where consumer recognition of their products is key. Manufacturers of packaged cannabis products especially need to consider the importance of this.

The tough thing about trademarks for marijuana businesses, however, is that the USPTO has refused to issue them for any cannabis plant-touching product. So you can’t trademark the name of your THC-potent strain or even the name of your dispensary.

However, the agency has loosened its rules ever since hemp was legalized with the advent of the 2018 Farm Bill, which removed cannabidiol (a hemp extract that does not contain psychoactive THC elements) from the list of federally-recognized dangerous drugs.

Another reason to consider trademarks: It may be possible for a trademark secured for a hemp-derived product/brand to be enforced against other companies that might use it for their marijuana-containing products. The key is determining whether there is a likelihood of customer confusion.

Because of all the legal loopholes and bureaucratic red tape involved with cannabis companies securing patents, trademarks and other intellectual property protection, your best bet is to consult with an experienced Los Angeles cannabis business attorney.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Making Your Mark, Protecting It, July 2019, Marijuana Business Magazine