On May 2, 2019, the United States Patent and Trademark Office (“USPTO”) published Examination Guide 1-19 titled Examination of Marks for Cannabis and Cannabis-Related Goods and Services after Enactment of the 2018 Farm Bill (“Guide”). The Guide contains some good news for hemp producers, growers and sellers, albeit with certain caveats. It also provides a detailed roadmap for the USPTO’s Examining Attorneys when reviewing pending and future trademark applications seeking to register marks for hemp and hemp-derived products.
On December 20, 2018, the Agriculture Improvement Act of 2018, more commonly known as the 2018 Farm Bill (“2018 Farm Bill”) was signed into law. Under the 2018 Farm Bill, hemp and hemp-derived products were determined not to be controlled substances under the Controlled Substances Act (“CSA”). Section 297A of the 2018 Farm Bill defines “hemp” as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.”
Because the CSA makes it illegal to manufacture, distribute, dispense, or possess designated “controlled substances” it is the USPTO’s policy to refuse to register marks for goods or services that violate the CSA, even if such offerings comply with applicable state law. The USPTO previously rejected applications to register marks for hemp and hemp-derived products on the determination that such products were controlled substances under the CSA. The Guide provides that for pending USPTO applications filed prior to December 20, 2018 that seek to register marks identifying hemp and hemp-derived goods, the Examining Attorney will permit the applicant to amend the filing date to December 20, 2018 and, if the application was filed on the basis of use, to amend the filing basis to “intent-to-use.” By taking the unusual step of permitting amendment of the filing date, the Guide allows applicants to be in compliance with federal law at the time of the constructive filing. Applicants who amend their applications will also be required to amend the description of the applicable good to state that any applicable cannabidiol (CBD) or cannabis products contain less than 0.3% THC. Thus, this USPTO policy provides a legal path to registration for applications relating to hemp and hemp-derived products filed before the enactment of the 2018 Farm Bill.
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