CBD Trademarks Now Have Tough Road Toward Registration

The U.S. Trademark Trial and Appeal Board (TTAB) has just issued an opinion that is not going to please individuals and corporate entities in the Cannabidiol (CBD) space. It has ruled, in the case of In re: Stanley Brothers Social Enterprises LLC, that a Colorado CBD company is not permitted to have its trademark registered because the goods sold in association with the mark do not comport with the Food, Drug and Cosmetic Act (FDCA).

The examining attorney at the U.S. Patent and Trademark Office had previously determined that the mark (“CW”) as used was a per se violation of the FDCA. On appeal, the TTAB refused to interfere with the examining attorney’s conclusion.

Stanley Brothers Social Enterprises LLC, the applicant in the trademark matter, sells food products that have a hemp oil component. That added ingredient is enough to cause a rejection of a trademark application prior to registration.

The TTAB agreed and noted that CBD is primarily derived from cannabis, has been illegal under federal law in all or almost all forms for decades prior to 2014 and remains illegal under federal law “in many if not all forms today.”

While non-psychoactive CBD was removed from the Controlled Substances Act in 2018, that does not mean that it is authorized for use under the FDCA. In fact, the TTAB agreed with the examining attorney that it did not pave a path for CBD companies to have their trademarks registered, which will likely turn into important precedent for other companies with marks pending within the U.S. Patent and Trademark Office and/or entities thinking about filing applications in the future.