In a precedential resolution, the Trademark Trial and Attraction Board (“TTAB”) affirmed an inspecting lawyer’s refusal to register two “Bakked” logos by deeming the products to be unlawful drug paraphernalia below the Managed Substances Act (the “CSA”) and deciding the 2 exemptions of the CSA didn’t apply.
The Bakked trademark functions
Nationwide Concessions Group (“NCG”), a Colorado-based subsidiary of Canadian firm SLANG Worldwide, filed two trademark functions to guard its model title “Bakked” in reference to a product recognized as “an important oil dispenser, bought empty, for home use.” The inspecting lawyer took the place that the product constituted unlawful drug paraphernalia as a result of it was primarily used for “dabbing” cannabis-based oils, and it denied the functions. Appeals ensued, and the refusals remained in impact till it escalated to the TTAB. Sadly for NCG, the TTAB agreed.
The TTAB resolution
First, the decision (which is marked “This Opinion is a Precedent of the TTAB”) analyzes whether or not the product needs to be thought of drug paraphernalia below the CSA:
“tools or merchandise primarily supposed or designed to be used in ingesting, inhaling, or in any other case introducing marijuana into the human physique (e.g., water pipes, roach clips and bongs) represent illegal drug paraphernalia below Part 863(d) of the CSA, however for 2 exemptions set out in Part 863(f).”
Right here, the TTAB cited a number of extrinsic items of proof to point out that the oil dispenser needs to be thought of drug paraphernalia. This included a press launch by Nationwide Concessions, which marketed itself as “The Largest Hashish Firm within the US” in addition to information articles describing “dabbing” as a brand new solution to get excessive – which is what the oil dispenser was primarily linked to.
Having determined the dispenser did represent drug paraphernalia, the choice then examines whether or not it fell below an exemption of the CSA. Part 863(f)(1) of the CSA exempts “any individual approved by native, State, or Federal legislation to fabricate, possess, or distribute such objects.” Right here, NCG argued that as a result of it’s approved by Colorado state legislation to provide such a product, it ought to qualify for the exemption. The TTAB disagreed that Colorado state legislation ought to have any bearing on federal trademark registration and safety:
“[A]ny authorization by Colorado of Applicant’s manufacture, possession or distribution of the products can not override the legal guidelines of the opposite states or federal legislation exterior Colorado. … Whereas Applicant could also be appropriate that Colorado has approved it to fabricate, possess or distribute the products, such authorization doesn’t lengthen past the borders of Colorado. … However that exemption is inadequate to assist the federal trademark registration Applicant seeks, which might be nationwide in impact. We maintain that when a Part 863(f)(1) exemption is relevant primarily based on state legislation, that exemption doesn’t assist federal registration.”
The TTAB equally discovered that NCG didn’t qualify for the second exemption both. Part 863(f)(2) of the CSA exempts “any merchandise that, within the regular lawful course of enterprise is imported, exported, transported, or bought by the mail or by another means, and historically supposed to be used with tobacco merchandise, together with any pipe, paper, or accent.” Right here nonetheless, NCG simply fell in need of convincing the TTAB its product was historically supposed to be used with tobacco merchandise.
Conclusion
Whereas the Opinion is actually consistent with the shortage of USPTO safety for the business, it’s notable in that it unabashedly declares marijuana’s legality in anyone state has no bearing on whether or not federal registration and safety needs to be granted. It’s disappointing for these within the business who wish to (rightfully) shield their model, nevertheless it seems like that’s the way it’s going to be for the foreseeable future.
We’ve additionally written about different TTAB choices and its basic course of right here: