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In the marijuana-legal state of Washington and other states, registration is deemed to provide “constructive notice of the registrant's claim of ownership of the trademark throughout this state,” thereby preventing others from claiming their subsequent adoption of a similar mark was in “good faith.” Wash. Unfortunately, nearly all state registration systems are inferior to the federal counterpart on the issue of evidentiary presumptions created through registration, such as evidence of the validity of the mark and the exclusive right to use beyond the geographic scope of actual use.Compared with the federal system, which affords the owner exclusive rights to use the mark nationwide (subject only to prior users’ scope of actual use), only Florida, Massachusetts, Texas and Virginia explicitly afford registrants exclusive statewide use of registered marks.
Because Massachusetts recently legalized marijuana for recreational use, once commercial use becomes implemented, immediate registration of marijuana-based marks there is advisable.Adding to this minefield that federal applicants with marijuana-related marks face, applicable law summarized in the TMEP allows examining attorneys to require additional information from the applicant about the goods or services and to inquire about compliance with federal law.TMEP §§814, 907; Office Actions regarding “GANJYARD” (SN 86835910) (requiring a “written statement indicating whether all the services identified in the application will comply with relevant federal law, including the Controlled Substances Act”) and “GET LIFTED” (SN 86536529) (requiring the applicant to respond to questions including whether the identified goods include marijuana, or “paraphernalia or equipment designed for use in smoking, ‘vaping,’ inhaling, ingesting or consuming marijuana [including synthetic marijuana].”).Although AB 64 contains several other noteworthy (and politically palatable) provisions, the most talked-about feature of the new bill is the proposed creation of two new classifications for the registration of trademarks and service marks after January 1, 2018: Class 500 for medical and nonmedical cannabis or related products and Class 501 for medical and nonmedical cannabis-related services.Although conventional wisdom dictates these proposed classifications will enable marijuana businesses to better protect their intellectual property, the legal necessity and potential effect, including on currently existing alternatives, deserves a deeper exploration.What remains to be seen is if the registrant ever brought a claim for infringement, whether the registrations in classes 05 and 34 could be invalidated by a defendant based on unlawful uses in those classes, despite the innocuous specimens and actual simultaneous use on lawful goods.
The uncertainty solidified by the , using non-marijuana-based products and services as specimens of use to obtain registration despite simultaneous use illegal under the CSA in association with such goods and services.
By contrast, the intent-to-use applicant for “CHEECH & CHONG” was required to respond to the following questions: In response to the first question, the applicant replied that the mark was not yet in use on the specified goods, but added “it is not intended that [the goods will] be an illegal controlled substance.” Similarly, in response to the second question, the applicant responded “the goods are still in development.
Applicant does not intend for the goods to be primarily intended or designed for [prohibited purposes].” Subsequently, the applicant submitted specimens in showing use in Class 05 with no discernible reference to marijuana, and on clothing and various pieces of paraphernalia (including a vaporizer called “the doobie”), and the mark proceeded to register.
For these reasons, seeking federal registration for goods and services under which a mark is being used in potential violation of the CSA may not be worthwhile.
Similarly, the related strategy of seeking federal registration for ancillary but legal-across-the-board services is unattractive, as protection is afforded only to those ancillary goods and services, and the strategy risks facing invalidity arguments the closer these ancillary goods and services get to marijuana-based ones illegal under the CSA.
Notably, those prior recreational use states also have provisions comparable to California’s §14235, requiring conformity with USPTO classifications. ID # 20161093519 (Gorilla Glue logo for a medical cannabis strain in Class 31); Oregon Reg. 43635 (juju joints for “smokeless marijuana or cannabis vaporizer apparatus” in Class 34); WA file # 56638 (“The Joint” for marijuana / cannabis in Class 31). However, concerns such as the inability to police incoming trademark applications, or the potential problem of marijuana-based products competing with their non-marijuana-based counterparts tend to counsel in favor of California’s separate classification for marijuana-related marks to keep them more organized. Marijuana Trademark Registrations in California versus Current Alternatives Many of the benefits of the federal registration system are unavailable at the state level, such as the ability to file intent-to-use applications, which reserves marks despite a lack of use and treats such unused marks as being first used nationwide as of the application date.