Thursday, October 27, 2016

Trademark Reporter Commentary: "USPTO Snuffs Out Marijuana Dispensary Service Mark Application ...."

Seattle-based J. Michael Keyes reviews the TTAB's recent decision in In re Brown, in his pun-filled commentary entitled, "USPTO Snuffs Out Marijuana Dispensary Service Mark Application: Will All Others Go Up in Smoke, Too?" (106 Trademark Reporter 988 (September-October 2016). In In re Brown, 119 USPQ2d 1350, 1351(TTAB 2016) [TTABlogged here], the Board affirmed a refusal to register the mark HERBAL ACCESS for "retail store services featuring herbs," on the ground that the mark was being used in connection with the illegal sale of a substance (marijuana) in violation of the federal Controlled Substances Act (CSA).

As In re Brown tells us, federal trademark protection is currently unavailable for those businesses seeking to protect trademarks and service marks that involve the sale of marijuana. Not all arguments in favor of registration are forever snuffed out, though. There may still be some daylight to challenge the underlying basis of the TTAB’s decision regarding the application of the Controlled Substance Act to applicants who are legally exercising their right to sell marijuana under state law

Read comments and post your comment here.

Text Copyright John L. Welch 2016.


At 7:55 AM, Anonymous Anonymous said...

Would the TTAB recognize applicant's common law rights in the Herbal Access mark in an opposition proceeding?

At 7:59 AM, Blogger Unknown said...

I'm not sure attempting to register the mark 'herbal access' with a neon-lot green cross and signage on the store/website advertising marijuana counts as 'clever concealment'...seems pretty blatant to me. You don't see head shops advertising "marijuana bongs here!!!" Instead they advertise as 'tobacco shops' or 'smoke shops' and have 'water pipes' or 'hookahs'.

Also, the DOJ doesn't just look the other way when it comes to marijuana issues, congressional appropriation bills over the last couple years have included language prohibiting the DOJ from using funding to prosecute.

However, based on some of the file wrappers, I think the trademark office is getting pretty aggressive in rejecting marks they suspect might have cannabis connections.

At 8:28 AM, Blogger John L. Welch said...

If an opposer's common law rights were based on use in a state where marijuana is legal, I think the TTAB would recognize those rights. So the defendant would be denied a nationwide registration.

At 2:05 PM, Anonymous Anonymous said...

@John - but would they only recognize the rights back to the effective legalization date in that given state?

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