Don’t Bogart that Name: Medical Marijuana Trademarks
This item was originally published on August 5th, 2010 at Fast Company.
I predict that the hottest holiday gift for Californians this year will be the Volcano Vaporizer. Haven’t heard of it? It’s a “revolutionary system that releases the active ingredients from herbs through hot air vaporization.” And by herbs, they don’t mean basil. As you probably know, Californians will vote this fall on Proposition 19, which would legalize, regulate, and tax the purchase and sale of marijuana in the state. Recent poll numbers show that 52% percent of voters–that’s more than half–support Prop 19. If it passes, we could see legal marijuana on the market very soon.
And that means branding. I have heard the (perhaps apocryphal) story that companies like Philip Morris have pre-loaded their marijuana cigarette branding, that they’ve got the packaging, naming, and ads ready to go as soon as it’s legalized. (I have not been able to verify this through either Snopes or Straight Dope, so perhaps someone who knows can enlighten me.) It seems plausible, but a quick scan of U.S. trademarks shows no pending or registered marks for marijuana by cigarette companies.
This isn’t surprising, since to be eligible for a trademark, a product must be legal for interstate trade, not violate international trade agreements, and be in ongoing commercial use. Clearly this is not the case in the U.S. at the moment. But what about medical marijuana? It’s legal now in 14 states, plus Washington DC.
On April 1 2010, the U.S. Patent and Trademark Office (USPTO) announced a new category within class 5, which is where pharmaceuticals are registered. The goods and services description read “Processed plant matter for medicinal purposes, namely medical marijuana.” [eds. note: has the USPTO ever pulled an April Fool’s prank?] This set off a land rush for medical marijuana growers and dealers, with more than 250 marijuana-related trademark applications filed in the three months following the announcement.
But according to a page one Wall Street Journal article published on July 19:
the patent office snuffed out the promise of federal recognition. On Tuesday, after questions about the new pot-trademark category from a Wall Street Journal reporter, a patent-office spokesman said the office planned to remove the new pot classification by week’s end, and the category is now off the website. The spokesman, Peter Pappas, said the office’s lawyers were “aware” of the category weeks ago. “It raises examination issues,” Mr. Pappas said. “It was a mistake and we have removed it.”
(Quick aside: I can’t find any independent verification of this whole story anywhere, not even on the USPTO site. It’s also troubling that the WSJ conflates “patent” and “trademark” throughout the article. Makes me wonder about the writer’s familiarity with the whole area of intellectual property. You hear me, WSJ?)
So as of now, there many freshly filed applications which will likely not make it through the examination process–but they haven’t been summarily rejected, either, so maybe the USPTO is waiting for the California election in November. And applications are still rolling in. Interestingly, many of the mark applications are for street names that have been around for decades. This brings up a different question: can you claim ownership of what is essentially a generic name? These names might qualify as “prior art,” meaning their use in the past precludes a trademark. Who could really lay claim to names like Chronic, Purple Haze, Panama Red, or Acapulco Gold (all filed by Scott Ridell, a brand-development consultant, on behalf of Panatella Brands, a Colorado pot-grower consortium?
Of course, marks have been registered for goods and services associated with marijuana, and there’s no reason to assume similar applications won’t be approved. There’s a mark for Wonders of Cannabis, for organizing, operating and presenting festivals in the field of the cannabis plant; Weedtracker, for online directories providing information on medical marijuana; Cannaflage, for clothes with a cannabis leaf pattern on them; and my favorite, iWeed, for an online forum to discuss medical marijuana. Given these existing registered marks, I don’t see why Hemp T.V., a mark for a cable channel to educate the public about marijuana, won’t make it through.
As for the medical marijuana itself, there may be another strategy. If it’s legal in California, growers and dealers could obtain state registrations, earn rights to the names, and eventually push for Federal registrations. (The database for California-only trademarks is not searchable online, so I couldn’t check to see if any of the marks filed federally were also filed within the state.)
My prediction is that we will see a lot of marijuana branding in the not too distant future–from local providers and tobacco companies alike. The day will come when you’ll be picking up couple ounces of Albino Rhino at the farmer’s market down the street; of course, you could buy it at Whole Foods, but it’ll be twice as expensive and take you four times as long to check out. If I’m ever faced with that decision, I think I’d prefer to support the local economy.