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USPTO Issues New Exam Guide on Marks for Cannabis and Cannabis-Related Goods and Services

The USPTO issued Examination Guide 1-19 to clarify the registrability of federal trademarks covering cannabis and cannabis-derived goods and/or services.  Use of a mark in commerce must be lawful under federal law to be the basis for federal registration under the U.S. Trademark Act.  Accordingly, the Unites States Patent and Trademark Office (“USPTO”) will refuse to register any mark for goods and/or services that show a clear violation of federal law, regardless of legality under state law.  Under federal law, marijuana, including cannabidiol (“CBD”), is a prohibited substance.  The 2018 Farm Bill, enacted on 20 December 2018, removed “hemp” from the definition of marijuana, which means that cannabis plants and derivatives (e.g. CBD) that contain no more than 0.3% THC on a dry-weight basis are no longer controlled substances under federal law.  Accordingly, trademark applications filed on or after 20 December 2018  that identify goods derived from “hemp” are now registrable.  The Examination Guide also sets out the procedure for examining marks for cannabis and cannabis-derived goods and/or serviced filed before 20 December 2018.

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