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Survey of Marijuana Law in the United States: Intellectual Property issues related to Legal Marijuana Sale

Summary of Intellectual Property Issues

Marijuana is still federally outlawed and as such the list of intellectual property protections for marijuana businesses, despite operating legally in their state, is short. Patents and trademarks are two vital pieces of intellectual property and their application in the marijuana industry is still being explored as more states pass statutes legalizing marijuana at some level every year.

Articles on Intellectual Property Issues related to Marijuana

Branded Bud or Generic Ganja? Trademarks for Marijuana in Washington

Author: Sean Clancy 

Marijuana is legal under Washington State law but illegal under United States federal law. This paper assumes that marijuana will remain legal in Washington. Springing from that assumption, a crucial question is, what shall a merchant call her marijuana? This paper explores that question first by describing the benefits and costs of allowing trademark protection for marijuana, concluding that trademark law should protect marijuana products. Second, this paper identifies possible methods of seeking trademark protection for marijuana. Third, this paper explains how the law should determine whether proposed marijuana trademarks are distinctive and protectable, or unprotectable for being descriptive or generic. Ultimately, this paper argues that an understanding of marijuana’s various genetic strains and slang terms is necessary to properly assess marijuana trademark rights and to prevent unfair competition in the marijuana industry.

Franchising a Marijuana Business: It's Not Quite Mission Impossible

Authors: Shannon L. McCarthy and Dawn Newton 

This article focused primarily on the laws in states that have legalized all uses, including smoking, of the cannabis plant by the public. Some states have legalized the use of cannabis in medical research only; use of only hemp extracts or oils, use of only cannabidiol (CBD), which is derived from cannabis but does not produce the high that comes from tetrahydrocannabinol (THC); and medical use only for epilepsy and other purposes. This article limits the discussion to trademarks because of its definitional connection to franchising, but an entire article could be written on the full panoply of the intellectual property rights related to cannabis. 

Patenting Marijuana Strains: Baking Up Patent Protection for Growers in the Legal Fog of This Budding Industry

Author: Joseph Dylan Summer 

The current state of the law regarding the patentability of marijuana and cannabis products is murky. Despite the fact that several states have legalized the medical and/or recreational use of marijuana, federal law continues to explicitly prohibit the use, distribution, and cultivation of cannabis under the Controlled Substances Act (CSA). Due to changing state laws and the growing public support for marijuana decriminalization, the author of this Note suggests several options for legal changes that would allow cannabis cultivators to patent unique marijuana strains. The author provides three possible avenues for moving forward: (1) Congress could enact legislation to resolve the conflict between federal and state laws; (2) the president could change the status of marijuana from a Schedule I narcotic to Schedule II or less; or (3) the United States Patent and Trademark Office (USPTO) could issue a patent for a cannabis strain to demonstrate the patentability of individual cannabis strains. Although cannabis cultivation has been federally prohibited, policy concerns underlying plant patents and Federal Circuit case law demonstrate cannabis varieties are likely patentable. This Note highlights the change in the public acceptance and legality of marijuana and asserts that patenting individual strains of marijuana may spark innovations in cannabis varieties.

Trademark Laundering, Useless Patents, and Other IP Challenges for the Marijuana Industry

Authors: Sam Kamin and Viva R. Moffat 

Marijuana law is changing rapidly in the United States today – since 1996, 23 states and the District of Columbia have legalized medical marijuana and five jurisdictions have made marijuana legal for all adults. Because marijuana remains a prohibited substance under federal law, however, the states are significantly limited in their ability to control marijuana policy within their borders. For example, because banking is regulated by the federal government, state-licensed marijuana businesses cannot gain full access to banking services; because bankruptcy is a federal benefit, it is unavailable to those involved in the business of violating federal law.

This article examines the implications for marijuana businesses of another area of federal regulation that has heretofore escaped academic commentary: federal intellectual property law. The continuing federal marijuana prohibition means that the most relevant federal intellectual property protections – trademark and patent – are largely unavailable for most marijuana businesses. While they are bound to comply with the dictates of trademark and patent law in their own affairs, marijuana businesses cannot acquire the rights and benefits of those laws or invoke those doctrines against others.

We discuss the ways in which these businesses attempt to circumvent the unavailability of patent and trademark rights, often through reliance on state law doctrines which generally prove insufficient to meet their needs. We also discuss the unexpected natural experiment that the current conflict between state and federal law creates. It is often asserted that intellectual property protections are necessary to foster creativity and investment. Yet the marijuana industry has seen extraordinary innovation and capital formation, even as these ostensibly necessary protections have proven unavailable. We conclude by discussing the implications of this observation for federal intellectual property law and policy more generally.

Roll Another (Serial) Number for the Road: The Long, Strange Trip of Protection for Marijuana Trademarks

Author: Rebeccah Gan 

Print, broadcast, and social media will not advertise their goods and services. Yet, the advent of legal medical and recreational marijuana has nonetheless birthed a budding "green" economy replete with branded snack foods, infused cosmetic creams, sundry varieties of unprocessed cannabis, and even "CANNABREAD," a marijuana-specific marketing agency. Unfortunately, the core of cannabis brands, the trade and service marks to which consumer goodwill necessarily attaches, are mired in a decidedly fraught relationship with intellectual property protection. Specifically, the complex interplay between the marijuana industry and the U.S. Patent and Trademark Office (USPTO) presents a variety of challenges for would-be pot barons. This article analyzes obstacles and potential protection strategies for cannabis brands in the emerging marijuana marketplace, including state trademark protection, federal copyright for a cannabis company's non-marijuana-related goods and services, and possible protection for unregistered trade and service marks under section 43(a) of the Trademark Act. 

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