For most businesses in America, ensuring that your brand is protected from imitators is relatively simple process. Trademarks allow companies to register the identity of their brand so that others aren’t able to legally benefit from the public awareness that they’ve created. This means that if we decided to start a chocolate company, we’d probably run into legal issues if the word “Hershey” appeared anywhere in our name. And just like the recipe for a chocolate bar, marijuana strains are important intellectual property bred by expert growers. But because the federal government continues to list cannabis as a schedule one drug, growers and brands are banned from registering their trademarks for marijuana intellectual property.
This week, the Los Angeles Times published an in depth report looking at the challenges of protecting one’s intellectual property investments in the marijuana industry. Today, companies that sell marijuana are barred from registering trademarks in relation to their marijuana business and there’s no regulation maintaining consistency in strain naming conventions. That means that the Las Vegas Purple Kush that you buy from one grower may, in fact, have nothing to do with the LVPK that you picked up elsewhere.
Canna businesses are trying to work around the current shortfalls in the marijuana intellectual property system by registering trademarks for its brand identity through ancillary products, such as accessories, hats, or t-shirts. Their hope is that by creating a circle of intellectual property protections for brand related products, effectively ring-fencing the marijuana itself, they’ll be able to effectively ward off imitative attacks on their brand.
For example, in the chocolate example above, we saw that were “Hershey’ in the name of another chocolate bar, a court almost definitely rule that the name was likely to confuse a consumer as to the actual origin of her chocolate bar. But if a computer company wanted to launch a mobile phone named “The Hershey”, the trademark protection might not apply, as there’s little potential for consumer confusion.
By registering numerous trademarks with the same brand as the marijuana that they sell, cannabis companies are attempting to effectively trademark a cannabis brand without involving any trademark of the marijuana itself. This may work. There’s just one trick: the companies will have to keep moving t-shirts and caps with that branding on them: trademark protections only apply to actively traded goods.