©2015. Published in Landslide, Vol. 7, No. 5, May/June 2015, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any 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 or the copyright holder.
Print, broadcast, and social media will not advertise their goods and services.1 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 “CANNABRAND,” a marijuana-specific marketing agency.2 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 protection, obtaining federal trademark protection 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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