CAN YOU TRADEMARK A CANNABIDIOL (CBD) PRODUCT?

The short answer is yes, and no. It depends.

In December 2018, Congress passed the Agricultural Act the legalized hemp products, namely, Cannabis sativa with less than 0.3% tetrahydrocannabinol (THC) by dry weight. This means hemp and cannabidiol (CBD) from hemp are legal.

This legality is limited to the Controlled Substances Act. That means hemp and CBD from hemp are no longer controlled substances, or no longer “drugs”. They can be grown, possessed, traded, sold, etc., subject to certain law, such as state laws on registering hemp fields prior to growing and passing the 0.3% THC limit.

This is why it can be “yes”. CBD products such as topicals and vaporizer liquid are legal, in the way that they comply with the Controlled Substances Act, and the sale, possession, and use of these products are not contrary to other laws.

The “no” comes from the Food and Drug Administration (FDA), which regulates food, food supplements, and drugs. The FDA categorizes food and drugs separately, where one cannot be another. Antibiotics, which are common drugs, cannot be added into food and sold freely in the supermarket, instead a prescription is required.

Under the purview, the FDA classifies CBD as a drug. The only approved CBD drug in the United States right now is Epidiolex, an anti-epilepsy drug approved to treat Dravet symptom, a rare epilepsy disorder. Epidiolex has as its main active ingredient CBD, which is dissolved in sesame oil and other flavors.

It is because of Epidiolex that the FDA considers CBD itself as a drug and any food or supplements may not have CBD added to it without being considered to be “adulterated”. Using this rationale, the United States Patent and Trademark Office refuses to register trademarks used for CBD edible products.

Do not despair! In May 2019, the FDA held a hearing to consider allowing the sale of CBD edible products as nutritional supplements. The hearing brought together every facets of the CBD industry, united to give the FDA information on the presence and safety of CBD in the U.S. market place.

Meanwhile, CBD commerce continues. If you do have a CBD product, do not hesitate and apply for a Federal trademark today. CBD topical and vaporizer products will receive trademark registrations without CBD-induced difficulties. CBD edible products may be legalized by the FDA soon, and if you wait, someone else may get ahead of you in the line. Do not risk that, since trademarks can be obtained at a low cost to you.

For more information on CBD TRADEMARKS, contact Premium IP Services, P.C. at www.preips.com, [email protected], or +1 619-889-2990.