Monday (4-20) was the unofficial holiday of stoners. With the legalization of pot in certain states, a new crop of trademarks and celebrity endorsements are growing. The latest addition is Willie Nelson, who announced he will introduce WILLIE'S RESERVE brand of pot along with a chain of cannabis dispensaries. Trademarks are becoming increasingly important as the recreational pot industry grows. But, don't try to register those marks with the United States Patent and Trademark Office. Because marijuana is illegal under federal law, the Trademark Office will not allow registrations for marijuana-based products or services.
Without a federal registration, trademark rights are limited to the actual geographic area in which you are physically doing business. One important benefit of federal trademark registration is that the trademark owner is presumed to be entitled to use the mark throughout the entire United States regardless of where they are geographically located. Without the benefit of federal trademark law, however, those brands who move exclusively in the marijuana marketplace may find themselves without clear legal precedent for trademark enforcement, looking to alternative means of protection under state law, including individual state trademark registrations or state laws prohibiting unfair competition. Protection will vary from state to state, and securing protection in Colorado doesn't automatically give you any protection in Washington. Each state must be examined where you do business or where you want to do business in the future.
It may be possible to federally register a mark for related products as a means of garnering some protection for a cannabis brand. For example, if a cannabis shop sells both regular snacks and marijuana-infused snacks, it may be possible to get a federal registration with respect to the regular, non-infused products.
If you want to see some of the rising brands of cannabis creations, check out the listing of winners for the 2015 High Times Cannabis Cup.
What's a brand to do when you can't claim nationwide rights to your mark but you want to prohibit someone in another state from using your brand? You find a celebrity that can do that for you under publicity rights. Willie Nelson has long been associated with pot, but he is not the only celebrity to enter into this new endorsement arena. Others include:
- Melissa Etheridge – cannabis infused wine
- Rapper Wiz Khalifa – a line of vaporizer products and rolling papers
- Tommy Chong (from Cheech & Chong) – Chong Star" weed
- The estate of Bob Marley – Marley Natural" Jamaican blend
- Bethenny Frankel – a Skinnygirl version of weed (to help thwart the munchies)
- Snoop Dogg – new Eaze" app to have medical marijuana delivered to your door (described as "Uber" for weed)
On the flip side, mainstream brand owners have launched lawsuits to prohibit cannabis products from using similar trademarks and packaging to their non-cannabis products. Hershey filed a lawsuit last summer in federal court in Denver, alleging marijuana-infused food products packaged as Hashees, Ganja Joy, Hasheath, and Dabby Patty were knock-offs of Hershey's Reese's peanut butter cups, Almond Joy, Heath, and York peppermint patty, respectively. The case settled last fall, and the knock-offs will no longer be available.
I'll leave you with perhaps the biggest celebrity pot duo – Willie Nelson and Snoop Dogg. Snoop performs guest vocals on Willie's "Roll Me Up and Smoke Me When I Die".
The lawyers at Trademarkology provide trademark registration services backed by the experience and service of one of the nation's oldest law firms. Click here to begin the process of protecting your brand name with a federally registered trademark.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
