The USPTO last week published an Exam Guide about the handling of CDB and hemp goods, updating policies following enactment of the 2019 Farm Bill. The policy update is good news for many brands in this space.
The most important part of the USPTO’s new guide:
For applications filed on or after December 20, 2018 that identify goods encompassing cannabis or CBD, the 2018 Farm Bill potentially removes the CSA as a ground for refusal of registration, but only if the goods are derived from “hemp.”
Applicant’s should note that “the identification of goods must specify that they contain less than 0.3% THC.”
Furthermore, because the 2018 Farm Bill was enacted on December 20, 2018, applications filed before that date involving hemp CBD can still be refused as the commerce or intent at that time could not have been lawful under federal law. However, the USPTO exam guide indicates that they will permit such applications to be amended to feature a filing date of December 20, 2018:
the examining attorney will advise the applicant that it may request to amend the filing date of the application to December 20, 2018. The applicant must specifically state for the record that such a change to the filing date is being authorized and must establish a valid filing basis under 37 C.F.R. §2.34 by satisfying the relevant requirements.
For applicant’s with applications filed before December 20, 2018 and featuring both goods that involve CBD or hemp, and good that do not, they should be advised to consider the ramification of changing the filing date: The examiner will conduct a new search based on the amended filing date.
CBD and hemp goods that involve supplements or food or beverage may still have issues regarding lawful-use issues under the Federal Food Drug and Cosmetic Act
(FDCA) regulations that could lead to USPTO refusals. Although it is not clear if this act may still be updated following the promulgation of regulations after the 2018 Farm Bill.
Of course, these means that could may be a log-jam of CBD applications with filing dates of December 20, 2018, and some interesting priority disputes may ensue since no federal rights (arguably) could be established in the marks prior to that date. Would the TTAB or courts recognize any common law rights prior to December 20, 2018? Perhaps for auxiliary products or services?
Note that applications for marks used with products or services that directly involve or touch cannabis, marijuana, or THC will continue to be barred by the USPTO since, under federal laws and the Controlled Substance Act, they are not used lawfully in commerce.
For a more in depth discussion of the issues that trademark attorneys should be aware of in this field, you can purchase a recording of my CAN We Talk About CANnabis webinar here.
The full USPTO Exam Guide can be found at