Trademark Registration Update: USPTO Announces and Then Removes Marijuana Category for Trademark Applications

Trademark Registration Update: On April 1, 2010 the United States Patent and Trademark Office (USPTO) announced a new trademark category “Processed plant matter for medicinal purposes, namely medical marijuana.”

This new trademark registration category incurred a rush of new applications, one of the most memorable of which is “Keef Cola”, a marijuana product that provides patients with the ability to take their medication just like you would drink a can of Coca-Cola.

This action by the USPTO initially looked like a nod from the federal government towards the legitimization of the popular and natural medicinal drug. Although there are 14 states which have legalized the sale of medicinal marijuana, sale and consumption of the drug remains a violation of federal law and is punishable under federal law within those every state.

The addition of the marijuana trademark category by the federal agency stirred the hope of many pro-marijuana citizens. Indeed, the new category instigated a resurgence in trademark applications for marijuana (‘pot’) related products. In the three month period following the addition of the new category, the USPTO received more than 250 pot-related trademark applications with 57 of those applications specifically listing the new category.

However, on July 13th USPTO spokesman Peter Pappas told a Wall Street Journal reporter  that the USPTO planned to remove the new classification by week’s end and as of July 19th the marijuana category was taken down from the USPTO’s website. Pappas also said of the new trademark category that, “it raises examination issues,” and, “it was a mistake and we have removed it.”

This renege by the USPTO is hardly surprising. Actually, I was curious as to how this trademark registration category came to life in the first place. Keep in mind that to be eligible for a federal trademark registration, a product must be legal for interstate trade, not violate international trade agreements and be in ongoing commercial use. Although many marijuana-trademark registration categories would happily satisfy the ‘in ongoing commercial use’ requirement due to its legalization and use in 14 states, the other two requirements remain disappointingly difficult to fulfill. Specifically, interstate trade is governed by the federal government through power delegated by the Constitution. Moreover, because federal law makes it clear that marijuana is illegal, and federal law governs interstate trade, the likelihood that the USPTO will grant a marijuana-trademark is highly improbable until the federal government changes its stance on the natural medicinal drug.

The USPTO has never actually granted a marijuana-trademark registration. To further dampened marijuana-entrepreneurs’ hopes, Spokesman Pappas also stated that it’s “highly unlikely” that the USPTO would ever actually grant such a trademark in the future.

That is not to say that the USPTO will no longer accept marijuana related trademark applications. Another USPTO spokesperson, Jennifer Rankin Byrne, assured that new trademark-applications will continue to be subjected to the normal 13-month review process.

Interestingly, a significant portion of the trademark registration applications filed in the short lived marijuana category were submitted on behalf of Colorado residents. In this related article, Joel Warner provided a link to the USPTO database for the Colorado applications and noted some of the most interesting pot trademark applications originated from various entities in Colorado; dispensaries trying to protect their name, pot services, and pot products like “Dr. Canna Cola”, Ganja, Maui-Waui, G-13, Taste Buds and ReLeaf.

For a quick re-hash on how to trademark your name and trademark registration, before being eligible to become a federaly registered trademark, a product must;

1. Be legal for interstate trade;
2. Not violate international trade agreements; and
3. Be involved in ongoing commercial use.