Intellectual property attorney Anne Glazer was quoted in World Trademark Review in an article titled “Four new states legalise recreational cannabis: what it means for brands,” published November 5, 2020. (Subscription required.) In the article, legal practitioners discuss the prospects of businesses operating in the legal cannabis industry to obtain federal trademark protection.
Currently, the USPTO cannot register a trademark for a product covered by the Controlled Substances Act. However, the addition of Arizona, Montana, New Jersey and South Dakota to the 11 states that have previously legalized the use of cannabis will increase pressure on Congress to legalize its use nationwide; move it to a lower, less-restrictive schedule in the CSA; or revise the Trademark Act to permit registration of such marks.
In Oregon, voters approved Measure 110, which reduced the penalty for possession of illicit drugs to a $100 fine, with no possibility of jailtime. However, according to Glazer the fact that manufacturing and selling such drugs is still illegal in Oregon means no changes should occur in trademark practice for them.
With respect to items such as paraphernalia and accessories that are legal to sell, Glazer notes: “A trademark that makes a reference to hard drugs would already be allowed at the state and federal levels due to the recent Supreme Court rulings regarding immoral and scandalous marks.”