March 01, 2017

Federal Trademark Rights for Marijuana Vaporizers: Up in Smoke?

Stephanie Gumm

Reprinted with permission from The Franchise Lawyer, Winter 2017 (20:1), at 13–14. Copyright © 2017 American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

A franchise system’s ability to protect its trademarks can be critical to the success of that franchise system. The simplest, most powerful way to protect trademarks in the United States is to register them with the United States Patent and Trademark Office. While a number of states—Washington, Colorado, Oregon, and Alaska in the past and California, Maine, Massachusetts and Nevada in November 2016 ballot initiates—have legalized both medical and recreational usage of cannabis, cannabis remains a Schedule I drug under the Controlled Substances Act (“CSA”). And while federal law enforcement officials have generally refrained from prosecution of those in the cannabis industry so long as industry participants strictly comply with state law under the Cole Memo (available here), other federal agencies are not so accommodating, as a recent decision from the Trademark Trial and Appeal Board (“TTAB”) demonstrates.

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