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It is well known that the U.S. Patent and Trademark Office (USPTO) does not allow federal registration for cannabis-related trademarks (discussed by this blog hereand here). Some commenters have speculated that, because courts have been chipping away at the bans on immoral, scandalous, and disparaging trademarks, the ban on federal trademark registrations related to illegal activity may be next.
It is important to note that the Supreme Court decision in Matal v. Tam, which held the restriction on disparaging trademarks was contrary to the spirit of the First Amendment, and the Federal Circuit ruling in In re Brunetti, which struck down the ban on immoral and scandalous trademarks, were both related to specific provisions under Section 2(a) of the Trademark Act. In contrast, the ban on trademarks for illegal activity is based on a long history of courts interpreting a fundamental definition of federal trademark protection and finding that registrations can only be granted to trademarks being used in connection with “commerce which may lawfully be regulated by Congress.” Unlike Tam and Brunetti, a court cannot simply say, “this law banning trademarks for illegal activity doesn’t work for us anymore,” so turning the ship around for cannabis-related trademark registrations will involve untangling years of precedential decisions.
In 2017, a trademark applicant attempted to argue that, because some states have legalized marijuana, especially medical marijuana, and because the Department of Justice does not generally treat medical marijuana as a violation of the Controlled Substances Act, that the USPTO should not consider medical marijuana services to be unlawful. The Trademark Trial and Appeal Board held that, so long as marijuana is a Schedule I controlled substance, the Board will consider the distribution and dispensation of marijuana to be unlawful, and will deny registration for marks used in connection with the sale of marijuana.
Despite this restriction, cannabis-related marks do find their way onto the registry. For example, there is a federal registration for U.S. WEED CHANNEL for broadcasting services, and the ……
Read the full article at https://www.blunttruthlaw.com/2019/03/likely-to-be-dazed-and-confused-the-hazy-future-of-cannabis-related-trademarks/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&utm_campaign=a4b3efd81e-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_b58220fdbe-a4b3efd81e-72758269
More About the Author
Becki Lee is counsel in the Intellectual Property Practice Group of Seyfarth Shaw LLP’s Atlanta office.
Ms. Lee’s practice involves trademark portfolio management, including US and international clearance, prosecution, and enforcement. Ms. Lee also handles copyright prosecution and enforcement, domain name enforcement, anti-counterfeiting efforts, Digital Millennium Copyright Act takedowns, and various entertainment law issues. Ms. Lee has represented clients in disputes in federal district court and in front of the Trademark Trial and Appeal Board.
Before law school, Ms. Lee worked in the music industry, handling public relations and marketing for artists, record labels, and festivals. Ms. Lee enjoys working with organizations like Georgia Lawyers for the Arts that combine her love of music and law.
- J.D., Georgia State University College of Law, cum laude (2014)
Moot Court: Best Brief, Cardozo BMI Competition
President, Sports & Entertainment Law Society
- B.A., University of Georgia (2001)
- Certified Lean Six Sigma Yellow Belt
- U.S. District Court for the Northern District of Georgia
- Georgia Supreme Court
- Georgia Court of Appeals