Effective January 18, 2025, the United States Patent and Trademark Office (USPTO) enacted a new trademark fee structure that affects fast-paced industries more than others, most notably, the hemp and cannabidiol ("CBD") industries.
The new fee structure is presented as a neutral pricing adjustment to replace the current TEAS Plus and TEAS Standard application filing options with a single base application option that changes based on the "complexity and completeness of the application." The USPTO released a guide on the fees, here: Trademark Examination Guide 1-25. Yet, the reality is that this change penalizes businesses working with federally legal hemp and cannabidiol products, making it more expensive for them to access brand protection through the federal trademark system.
New Fee Structure: More Than Meets the Eye
Here's a breakdown of the USPTO's updated fee framework for federal trademark applicants:
- Base Application Fee: $350.00 per Class
- Custom Identifications of Goods and Services (i.e., not using Trademark ID Manual): +$200.00 per Class
- Long Identifications: +$200.00 for each additional 1,000 characters
- Insufficient Information: +$100.00 per Class for missing new content requirements
Applicants who use the USPTO's Trademark ID Manual—a list of pre-approved goods and services—can avoid the $200.00 custom language fee. But for businesses in the hemp and CBD industries, this lower-cost path appears unavailable to them.
ID Manual Fails to Reflect Legal Hemp Products
The USPTO understandably scrutinizes applications in these industries to ensure compliance with federal law. Through its Exam Guide 1-19.pdf, the USPTO suggests applicants, in part, request amendment of the identification of [goods or] services to specify that the involved cannabis contains "a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis."
However, despite the legalization of hemp-derived goods under the 2018 Farm Bill, the Trademark ID Manual fails to include acceptable entries for lawful hemp products, such as those containing "0.3% delta-9 THC or less by dry weight," the federal threshold under current law. The ID Manual includes hemp fibers and other Class 24 goods. The ID Manual also includes "smokers' articles in the nature of hemp wicks for lighting" in Class 34. However, the legally sufficient language – "not more than 0.3% delta-9 THC by dry weight" does not appear in the ID Manual. Further, there are no entries containing the terms "hemp oil," "hemp flower," "cannabis," "CBD," or "cannabidiol," for example.
Applicants who identify their goods or services with the language "not more than 0.3% delta-9 THC" must draft custom language, thereby triggering the $200.00 custom language penalty per Class. If the applicant identifies products and services in three Classes, for example, that's an additional $600.00 in filing fees.
The best option to avoid the $200.00 fee may be to identify their products or services without specifying hemp or CBD as an ingredient or feature of them. Yet, that option will likely invite further scrutiny during examination. The risk they take with this approach may be having to pay the $200.00 fee during examination rather than at the time of filing the application. The USPTO examining attorney assigned to the application could likely determine that the applicant owes the additional fees during the examination process, but since applications filed after January 18, 2025, have not been examined yet, we have yet to see this approach.
This issue –requiring language but excluding that language from the pre-approved list – was raised directly with the USPTO via tmidsuggest@uspto.gov on January 24, 2025; (the email address offered by the USPTO to suggest an identification of goods or services for possible inclusion in the ID Manual). The USPTO confirmed in its response that it has not included any such entries in the ID Manual and cited the legal complexity surrounding hemp-related products. The USPTO noted that items in the ID Manual must not require further inquiry, and that hemp products often invite review under the Controlled Substances Act, the Federal Food Drug and Cosmetic Act, and other regulations—even when the products are fully compliant. Essentially, the USPTO confirmed – if you want to identify products and services in this industry, expect heightened examination and additional fees as a result.
The Legal Catch-22
The USPTO's stance creates a legal paradox: businesses that follow the USPTO's suggestions and include federally compliant hemp language in their applications are punished with higher fees and, often, prolonged scrutiny. The USPTO's own Exam Guide 1-19 (PDF link) outlines these standards and confirms that hemp-related trademarks will only be approved if the goods comply with federal law. Yet, it fails to offer any streamlined way for such businesses to access cost-effective filings through the standard $350 per Class option.
Opting Out—or Taking a Stand
Faced with this uphill battle, many hemp and cannabis businesses are making a calculated decision: to opt out of federal trademark registration for the core goods and services or even opt out altogether. Some are finding ways to identify ancillary products – clothing items, keychains, educational or entertainment services – and seeking federal trademark registration, there. Others are avoiding the USPTO process in order to sidestep a public record of unlawful use refusals, which can damage credibility, attract regulatory attention, or affect partnerships and financing.
Instead, some are relying on common law trademark rights or state-level registrations, which offer limited protection but avoid the federal red tape.
Many, however, are choosing a different path—opting to challenge the USPTO head-on. As our law firm's prior article on hemp brand protection notes, brand protection strategies should not be abandoned in the face of generalized resistance from the USPTO. With a clear understanding that hemp-derived products are lawful under federal law (as long as they meet the THC threshold), many brand owners are fighting to secure equal protection and recognition for their trademarks. These business owners argue that their brands deserve the same treatment as any other lawful product in the marketplace, and some are prepared to endure USPTO refusals, Office Actions, increased costs, and appeal processes in the pursuit of such protection.
What Needs to Change
Possible solutions include:
- Update the Trademark ID Manual to include goods and services with language that is certain to be accepted by the USPTO in this industry such as: "Cosmetics containing hemp-derived cannabinoids with less than 0.3% delta-9 THC on a dry weight basis" or by adding, "any CBD in the goods being solely derived from hemp with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis."
- Waive the $200.00 custom identification fee when the USPTO requires further specificity on examination for industries that were excluded from the ID Manual at the time of filing the application due to federal compliance complexities.
- Create an updated and clarified pathway for hemp-derived products to be registered under trademarks, using the USPTO's own Exam Guide 1-19 as a foundation, but with greater transparency and clearer guidance.
A Matter of Fair Access
Hemp and cannabis brands represent a fast-growing sector in the economy. Yet under the current USPTO examination guidelines, fee structures, and rules, they are paying more, waiting longer, and being scrutinized harder, despite those working to stay within the bounds of federal law.
Until the ID Manual is updated, the USPTO's fee system will continue to disadvantage one industry under the guise of regulatory caution. Lawful businesses deserve a trademark system that recognizes and reflects their legitimacy, not one that punishes them for legal compliance.
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.
