Getting Out of the Weeds: Why Cannabis Products Can Be Patented but not Trademarked

Originally posted 2018-11-19 11:20:14

By Gabrielle Sherwood|

Cannabis: patentable but not trademarkable

Cannabis is legal for recreational or medicinal use in almost 30 states, and this number is likely to grow. However, cannabis remains illegal under federal law. As a result, the United States Patent and Trademark Office (USPTO) will not register trademarks for retailers of cannabis, or for products that contain cannabis.

However, what is especially interesting is that the USPTO will grant patents involving cannabis and its derivatives. More simply put, cannabis is patentable. Examples of cannabis-related patents include drug formulations, methods of treating sickness and disease with cannabis, and even cannabis plant patents. So why is cannabis patentable, even though federally it is illegal?

The simple answer is that nothing in the law expressly bars patent protection for illegal substances. Further, historic practices of the USPTO may help answer the question. The USPTO has continued to issue cannabis related patents since 1942 and right now there are around 500 valid U.S. patents involving cannabis. It has been long said that one can patent “anything under the sun that has been made by man,” and cannabis-related patents are a great example.

In sum, with the trend being toward the legalization of cannabis-markets are forming. Owners of dispensaries want to federally protect a trademark for their shops and cannabis products, but they are stopped from doing so by the USPTO. It is not to say that marijuana brands cannot register a trademark used in connection with goods such as clothing-but definitely not for cannabis-containing products.