Pursue Cannabis Intellectual Property Strategies Despite Limitations

By: Justin McNaughton

There is a lot of misinformation about intellectual property and Cannabis. Let’s see if we can clear some of it up. First of all, there are four types of intellectual property: patents, copyrights, trade secrets, and trademarks.

> Patent: A patent is a grant of a property right in a useful process, machine, article of manufacture, or composition of matter – granted by the government – to prevent others from making, using, or selling the invention claimed in the patent. The patent system is authorized by the U.S. Constitution. More information is at the U.S. Patent and Trademark Office’s Website. Any protection requires issuance of a patent.

> Copyright: A copyright is a grant of a property right in an original work of authorship that is fixed in a tangible medium of expression – granted by the government – to prevent others from copying the author’s work. The copyright system is authorized by the U.S. Constitution. More information is at the U.S. Copyright Office’s Website. Full protection requires registration.

> Trade Secrets: A trade secret is any information that has independent economic value because it is not known by other people and is kept secret using reasonable efforts by its owner. Trade secrets are established by state law and, although most states have adopted a Uniform Trade Secrets Act, there are variations between states. More information is at The Legal Information Institute’s Website. No registration required.

> Trademarks: A trademark/service mark is a word, name, symbol or device that is used to indicate the source of goods and services in the marketplace and to distinguish them from the goods and services provided by someone else. Trademarks are founded in consumer protection law, but they have also been protected by the Lanham Act. Congress has authority to protect trademarks because of its authority over U.S. Commerce granted by the Commerce Clause of the U.S. Constitution. Each state also has separate trademark statutes that coexist with the Lanham Act. More information is at the U.S. Patent and Trademark Office’s Website. No registration required, but full protection requires registration when available.

Upon reviewing, you will notice that only one of those intellectual property rights is founded on the commerce clause of the U.S. Constitution. This is important because, if you can remember that U.S. Federal Trademarks exist because of Congress’ ability to regulate interstate commerce, you will always remember which intellectual property right is unavailable for things that are illegal in interstate commerce – Only U.S. Trademark Registrations are unavailable for Cannabis, and only when the activity stated in the U.S. Trademark Registration is for an activity that is illegal in interstate commerce. State trademarks are permitted in any state that permits Cannabis-related trademarks, and U.S. Trademarks are permitted for any activity taken by a Cannabis-related company that is legal under U.S. law. To make a funny comparison, if a company that sold flower in Colorado also had a side business where it sold superhero comic books, it would be perfectly acceptable for the company to register a U.S. trademark application for comic books. Note that if the company happened to distribute Cannabis flower in sleeves inside the Cannabis comic books, they wouldn’t be able to register a U.S. trademark (and instead, would have lots of other problems).

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