Tuesday, March 02, 2021

Applying Stanley Bros., TTAB Affirms Illegality Refusal of CBD2GO for Dietary Supplements Containing CBD

In a case "on all fours" with the Board's recent Stanley Bros. decision (TTABlogged here), the Board affirmed a refusal to register the purported mark CB2GO for “dietary beverage supplements for human consumption in liquid and dry mix form for therapeutic purposes; all of the foregoing containing CBD." The Board ruled that Applicant Blue Water Wellness did not have a bona fide intent to use the mark lawfully in commerce because the goods are illegal under the federal Food, Drug and Cosmetics Act ("FDCA"). In re Blue Water Wellness, LLC, Serial No. 87893655 (February 24, 2021) [not precedential] (Opinion by Judge Michael B. Adlin). 

Blue Water admitted that its goods contain cannabidiol, but argued that under Florida law the sale of CBD food and dietary supplements is lawful. As to the illegality under federal law, Blue Water asserted that "“[g]iven the regulatory state of CBD and hemp under the 2018 Farm Bill, and the FDCA, this illegality will be resolved, and the Mark will be used with legal products." It relied on evidence indicating that the legal status of foods and dietary supplements containing CBD is "perhaps being reconsidered" and may change.

Applicant specifically “requests the Board acknowledge the unique regulatory status of CBD and hemp,” which it refers to as “regulatory flux,” and create an exception to the usual rule regarding legality and a bona fide intent to use.” Ultimately, Applicant “is planning for the inevitable future legality of CBD, and thus use of the Mark.”

The Board was not impressed. "Here, Applicant does not intend to use the mark in lawful commerce because its goods are food to which CBD has been added, and CBD has been subject to clinical investigations. Thus, the FDCA prohibits any sale of the identified goods." In re Stanley Bros. Bros., 2020 USPQ2d 10658 at *11-13.

Neither “regulatory flux” nor the potential liberalization of the FDCA to, perhaps someday, allow for the sale of food or supplements containing CBD justifies a different result or any “exception” to how we treat marks such as Applicant’s. The United States Congress is constantly discussing, proposing and debating bills which would and someday could change laws. Sometimes after vigorous analysis and debate, laws change; sometimes the status quo prevails. But it would be unworkable at best for the USPTO to change its own Rules or procedures in anticipation that certain proposed changes to federal law could someday be adopted. 

On the filing date of the Blue Water application, the sale of the identified goods was illegal under the FDCA. Therefore, Blue Water did not have a bona fide intention to use its mark in lawful commerce for purposes of Section 1(b) of the Lanham Act. And so the Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: Blue Water filed its application on April 28, 2018, but amended it filing date to December 18, 2018, pursuant to Examination Guide 1-19. That Exam Guide reflects statutory changes in the 2018 Farm Bill, and states that "applications filed after December 20, 2018 that identify goods encompassing cannabis or CBD" many be entitled to registration notwithstanding the CSA "if the goods are derived from hemp." After that amendment to Blue Water's application, the refusal under the CSA was withdrawn.

Text Copyright John L. Welch 2021.


At 12:29 PM, Anonymous Anonymous said...

Say what you want about whether marijuana should be legal or not. I don't understand how the US AG can just decide not to enforce that law, and let the states "legally" violate the law. Could they do that for any law? Could they just decide not to enforce the tax laws?

Seems to me that Congress needs to pass waivers, or something.


Post a Comment

<< Home