Final week, the TTAB, or Trademark Trial and Enchantment Board, refused to register AgrotecHemp Corp.’s “PUREXXXCBD” as a trademark for dietary dietary supplements containing cannabidiol as a result of the product was illegal. Particularly, AgrotecHemp sought registration for items recognized as:
“Plant extracts for pharmaceutical functions; nutritional vitamins; dietary dietary supplements; the entire foregoing containing CBD solely derived from hemp containing not more than .3% THC on a dry weight foundation.”
Nevertheless, the TTAB discovered that AgrotecHemp didn’t have “a bona fide intent to lawfully use the proposed mark in commerce.” Thus, TTAB denied the CBD trademark utility.
The TTAB evaluation
Right here’s how the TTAB broke down the difficulty and their evaluation. The TTAB began with a overview of the relevant legislation and cited to its PharmaCann opinion, which we’ve additionally beforehand lined. The usual is:
“For functions primarily based on Part 1(b) of the Trademark Act, akin to the current utility, if the file signifies that the recognized items embrace objects which are illegal as of the appliance submitting date, precise lawful use in commerce isn’t doable, and any intent that the applicant has to make use of the mark on such items isn’t the mandatory bona fide intent to make use of the mark in lawful commerce.”
The TTAB discovered the CBD trademark was supposed for items in commerce that, on the time of the appliance, had been prohibited beneath federal legislation, though they may grow to be lawful sooner or later. This was as a result of: (1) The products comprise CBD, which continues to be categorized as a drug, and (2) the products themselves additionally meet the definition of a drug however haven’t been accepted by the FDA.
AgrotecHemp responds to no avail
AgrotecHemp didn’t dispute that its items would comprise CBD, however tried to differentiate the hulled hemp seeds, hemp seed protein, and hemp seed oil which are typically acknowledged as secure. The TTAB caught to its weapons, writing:
“Provided that the products will comprise CBD as indicated by the identification of the products and the mark itself, the truth that Applicant’s items could also be derived from “hulled hemp seeds, hemp seed protein, and hemp seed oil” which can be typically acknowledged as secure doesn’t obviate their unlawfulness beneath the FDCA. The FDA requires any product marketed with a declare of therapeutic profit and containing hashish or cannabis-derived compounds (akin to CBD) to be accepted for its supposed use earlier than it could be launched into interstate commerce.”
What it means for hemp and CBD trademark functions going ahead
The PUREXXXCBD is discouraging, however these TTAB opinions are useful to know the way the lawful use in commerce requirement is regularly being analyzed on this area within the context of hemp and CBD logos. The USPTO and TTAB isn’t merely going to just accept an applicant’s description at face worth in lots of circumstances.
To the extent you’re contemplating defending your mental property belongings, make certain to grow to be accustomed to the features of the TTAB and the place present requirements stand so you’re assured of most safety.