Tuesday, February 15, 2022

TTAB Affirms Unlawful Use Refusal of "PUREXXXCBD" for Plant Extracts and Supplements Containing CBD

In a mere 5-pages, the Board affirmed a refusal to register the proposed mark PUREXXXCBD for "Plant extracts for pharmaceutical purposes; vitamins; dietary supplements; all of the foregoing containing CBD solely derived from hemp containing no more than .3% THC on a dry weight basis" (Class 5). The Board found that Applicant AgrotecHemp lacked a bona fide intent to use the mark in commerce because the goods are not in compliance with the Federal Food, Drug and Cosmetic Act (FDCA) and are therefore unlawful. In re AgrotecHemp Corp., Serial No. 88979905 (February 10, 2022) [not precedential] (Opinion by Judge Thomas Shaw).

Applicant's vitamins and supplements and its plant extracts fall under the FDCA because they are intended to affect the structure or function of humans or animals.

The FDA requires any product marketed with a claim of therapeutic benefit and containing cannabis or cannabis-derived compounds (such as CBD) to be approved for its intended use before it may be introduced into interstate commerce. Because Applicant has not made of record an NDA or ANDA for its goods, it was unlawful for applicant to introduce such goods into interstate commerce as of the application filing date, and remains so.

To repeat, because at the time of applicant's filing date the identified goods could not be lawfully introduced into interstate commerce, applicant did not have the required bona fide intent to use the mark in lawful commerce. See In re Stanley Bros. Social Enters., LLC, 2020 USPQ2d 10658, *9 (TTAB 2020) (where the identified goods are illegal under the FDCA, the applicant’s use is not in lawful commerce).[TTABlogged here].

And so, the Board affirmed the refusal under Sections 1 and 45 of the Lanham Act.

Read comments and post your comment here.

TTABlogger comment: See also the very recent, nonprecedential HARBOR HEMP COMPANY decision [TTABlogged here], also authored by Judge Shaw, which is on all fours with this decision.

PS: the first full sentence on page 3 of the PUREXXXCBD opinion doesn't make sense to me.

Text Copyright John L. Welch 2022.


At 11:14 AM, Anonymous Anonymous said...

I think the first full sentence on p.3 is missing a couple of commas. It should read "... the introduction, or delivery for introduction, ..."

At 12:38 PM, Blogger John L. Welch said...

This comment has been removed by the author.

At 12:40 PM, Blogger John L. Welch said...

This is the part I don't understand: "(indicating that vitamins and dietary supplements are deemed to be a food within the meaning of the FDCA and does not include an article that is approved as a new drug under 21 U.S.C. § 355, certified as an antibiotic under 21 U.S.C. § 357, or licensed as a biologic under 42 U.S.C. § 262)."


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