TTABlog Test: Is NATIVE NATIONS CANNABIS Merely Descriptive of Hemp-Containing Cosmetics?

The USPTO refused to register the mark NATIVE NATIONS CANNABIS , finding it to be merely descriptive of "Cosmetic bath salts; massage oils; cosmetic mud masks; body butter; anti-aging cream; moisturizing creams; bath bombs; and hand lotions; all of the foregoing containing ingredients solely derived from hemp with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis" [CANNABIS disclaimed]. Applicant is "from" the native nation Flandreau Santee Sioux Tribe in South Dakota. How do you think this appeal came out? In re FSST Pharms, LLC, Serial No. 97419333 (July 8, 2025) [not precedential] (Opinion by Judge Cheryl S. Goodman).

The Examining Attorney maintained that NATIVE NATIONS CANNABIS "would immediately convey to consumers not just the information that the goods contain cannabis, but that the goods and/or their cannabis ingredient are produced and/or offered for sale from one of the Native Nations.” She argued that there is a connection between Native Nations and cannabis products, pointing to evidence of a “growing movement of tribes to become involved in the cannabis products industry,” and noting that Applicant has a tribe-based dispensary.

The Board rejected the Examining Attorney’s argument that NATIVE NATIONS describes a particular location of the goods or reflects goods that are grown on a tribal reservation, because the evidence indicated that the term NATIVE NATIONS describes 574 nations within nations in the United States, and not a specific geographic unit or location.

As to the Examining Attorney’s argument that NATIVE NATIONS identifies the grower of a main ingredient of Applicant’s goods (hemp), the record did not establish that average consumers are aware that tribes of native nations are growing cannabis or hemp. As to the argument that NATIVE NATIONS identifies Applicant as a provider or source of the goods, the Board observed that there is no per se rule that a term that identifies the provider or source of the goods is merely descriptive. "Absent evidence, a specific finding standing alone that a term describes the provider or source is insufficient to support a Section 2(e)(1) refusal."

The evidence shows that some consumers may be aware that Applicant is a Native nation, and may be aware that Applicant operates a medical marijuana dispensary, but the record does not support a finding that NATIVE NATIONS immediately conveys to average consumers information about a quality, feature, or characteristic of the identified goods. We find NATIVE NATIONS is not merely descriptive of the identified goods.

And so, the Board reversed the refusal.

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TTABlogger comment: I don't find this opinion to be convincing, do you? To me, NATIVE NATIONS tells me that the goods come from a native tribe. Shouldn't every tribe be able to use the phrase?

Text Copyright John L. Welch 2025.