The registration of cannabis trademarks in the United States raises novel issues. This is an unsurprising result of the uneasy coexistence between expanding legality at the state level, and ongoing prohibition at the federal level. Cannabis businesses need to keep these issues on their radar when crafting brand strategies. At the same time, however, they should not neglect the trademark basics.
Cannabis trademarks must be distinctive
According to the Lanham Act (which governs federal trademark registrations), a trademark shall not be registered if “when used on or in connection with the goods of the applicant is merely descriptive.” This is true of all trademarks, not just cannabis trademarks. A guitar maker cannot register the mark Guitar, just as a hemp grower cannot register the mark Hemp.
This said, descriptiveness is relative. Hence that Lanham Act’s qualification that a mark may not be registered if it is merely descriptive “when used on or in connection with” an applicant’s goods. The term “guitar” is not descriptive in any way of a picture frame, and so registering the mark Guitar in connection to picture frames is fine. A guitar-shaped picture frame might be another story, since it describes a feature of the frame