Will California Cannabis Companies be Required to Submit all Packaging for Pre-Approval?

Will California Cannabis Companies be Required to Submit all Packaging for Pre-Approval?

After California voters approved Proposition 64 in November of 2016, several laws relating to cannabis changed immediately, many laws will remain unchanged until 2018, and still other laws remain in a “grey area.” One of the those “grey areas” is how exactly California will handle the laws surrounding labeling of edible cannabis products. 

In January 2017, Assemblymember Ed Chau of California’s 49th District introduced AB 175, a bill that, if passed, would require a manufacturer to submit all packaging and labeling to the Bureau of Marijuana Control for approval prior to introducing any edible marijuana product into commerce in California. Additionally, any time a manufacturer proposes to make a material change to the packaging or labeling of an edible marijuana product, that packaging and labeling must be submitted to the Bureau for another review. 

According to the proponents of the bill, it is necessary to require this level of review and scrutiny of infused cannabis edibles for the safety of children. Colorado and Washington regulators have wrestled with these concerns for years, citing packaging that appeals to children as one of the primary drivers of young kids' accidental ingestion of cannabis-infused edible products. The bill instructs the Bureau to determine whether the packaging and labeling are in compliance with requirements that the packaging be child resistant and not attractive to children. The bill's authors note that Washington requires the state liquor control board to approve the labeling and packaging for all marijuana infused products prior to marijuana manufacturers offering these items for sale in retail stores.

Yes... The USPTO Still Finds Cannabis Goods Federally Unlawful

Yes... The USPTO Still Finds Cannabis Goods Federally Unlawful

By: Nicole A. Syzdek

In an utterly unsurprising opinion issued on October 27, 2016, the Trademark Trial and Appeal Board of the United States Patent & Trademark Office, once again affirmed that marijuana paraphernalia is illegal under the Controlled Substances Act (CSA), and trademark registration will be refused if there is evidence showing the applicant did not possess a bona fide intent to lawfully use the mark in commerce.

In the present case, Applicant, JJ206, LLC d/b/a JuJu Joints, filed federal applications to register the marks POWERED BY JUJU and JUJU JOINTS for use in connection with “smokeless marijuana or cannabis vaporizer apparatus, namely, oral vaporizers for smokers; vaporizing marijuana or cannabis delivery device, namely, oral vaporizers for smoking purposes” in International Class 34.

Applicant explicitly identified the goods in its application as vaporizing devices for cannabis or marijuana, which makes it crystal clear that Applicant’s devices are designed and intended for use with federal illegal substances. Because the identified goods are illegal under the CSA, the Board determined that it was “a legal impossibility” for Applicant to possess the required bona fide intent to lawfully use the mark in commerce in connection with the applied for goods.

Colorado Cannabis Trademark Wars: Finding a GREEN SOLUTION

Colorado Cannabis Trademark Wars: Finding a GREEN SOLUTION

By: Nicole A. Syzdek, Associate, Brand & Branch LLP

On October 20, 2016, RX Green Solutions, LLC (“RX”)—a manufacturer and distributor of natural-based products used for the cultivation of plants—filed suit in the U.S. District Court for the District of Colorado seeking a declaratory judgment against The Green Solution, LLC, a company operating a chain of Denver-based cannabis dispensaries.

This is one of only a handful of federal trademark lawsuits we've seen between cannabis businesses. Assuming the case does not settle too quickly, its outcome will be instructive for cannabis companies seeking to enforce their trademark rights. It may also serve as a good reminder to think carefully about potential risks before firing off a round of cease and desist letters. 

Be Aware that Berkeley’s Minimum Wage Has Increased!

Author: Sean B. Gentry 

Email: sgentry@astralegal.com

Brand & Branch LLP presents a guest post by Sean B. Gentry. Mr. Gentry is an Associate with Ad Astra Law Group LLP. They counsel clients through difficult situations to achieve great results in the areas of business, employment, real estate, estates/trusts, family, and criminal law.

The minimum wage for employees working in the City of Berkeley has been increased to $12.53 per hour effective October 1, 2016. Employers with locations in Berkeley should remember to make this change for their upcoming employee payroll and promptly notify their minimum wage employees of their new wage rate, either in writing or on a timely itemized wage statement for their first October paycheck.

Berkeley is not unique in passing a minimum wage ordinance higher than the California state minimum wage. Employers with locations throughout the various major cities of the Bay Area should routinely check to ensure that they are paying the correct rates for minimum wage employees in those cities. Further, the California statewide minimum wage will also continue to increase each year under recently enacted legislation, rising from $10.00 per hour to $10.50 per hour on January 1, 2017 for employers with 26 employees or more.

As a final reminder, employers may not use an employee’s tips as a credit toward the obligation to pay the minimum wage for an employee that receives tips, such as an employee who works in a restaurant as a waitperson.

If you have questions about wage and hour laws governing your employees, Ad Astra can help you navigate the unique rules employers must follow in California and especially in the Bay Area. To read additional posts or learn more, please visit www.astralegal.com or call: 415-795-3579.

Selecting a Strong Trademark: Part II

Earlier this year, sociologist James I. Bowie published an article for Slate Magazine arguing that the marijuana leaf has become so ubiquitous in cannabis branding as to be visually indistinct. "Marijuana Branding Needs a Makeover," the headline declared. Bowie's position understandably created some controversy among cannabis activists, but it came as no surprise to trademark attorneys who have long been helping our clients balance a desire to honor marijuana's heritage with the need to create a distinct -- and therefore protectable -- cannabis brand.

According to Bowie,

The problem with the leaf in a marijuana business logo is that it is so commonly used that it acts as a symbol of merely the general category, rather than of the specific brand. Such visual clichés can be found in many fields, stemming from tradition (such as the use of striped poles as symbols for barbers) or obviousness (like dentists employing tooth logos). . . . This is fine when the category is more important than the brand. If you need a quick haircut or your molar is killing you, you’ll look for the first striped pole or tooth logo you can find. Because legal pot is still a novelty, the leaf itself is enough to attract business. But as marijuana becomes legally available on a more widespread basis, its branding is going to have to move beyond the generic leaf to incorporate more distinctive visual elements.

As trademark lawyers we can certainly understand Bowie's perspective. The marijuana leaf tells patients and customers that you sell cannabis. A distinctive brand communicates much more.

But it's complicated. Many cannabis businesses incorporate marijuana imagery into their branding to honor those who fought to bring about what today we call the "cannabis industry," and to root themselves in a long tradition of cannabis cultivators and activists. The iconic value of the marijuana leaf and the history it represents should not be understated. 

If your company is considering adopting a trademark that incorporates traditional marijuana imagery, it's critical to understand what makes a trademark distinctive, and why adopting a commonly-used word or image may make protecting and enforcing your brand both difficult and costly.

Selecting a Strong Trademark: Part I

The "Spectrum of Distinctiveness"

By: Nicole A. Syzdek, Associate, Brand & Branch LLP

Your brand is everything. A strong brand firmly establishes your presence in the marketplace, increases the value of your company, and makes acquiring (and keeping) customers easier. Creating a strong brand begins with selecting a memorable trademark that keeps your company in the forefront of consumers' minds, ensuring that when they're ready to buy, they'll think of you first. 

Selecting a Strong Trademark

Your trademark is an essential component of your brand. A trademark, or "mark," is any word, name, symbol, design, image, or even sound used in commerce to indicate the source of your goods or services and distinguish them from others'. Trademarks are extremely valuable assets and represent the hard-earned goodwill of your business. But not all trademarks are created equal. 

When generating brand ideas, many new companies initially select names that describe the goods or services they offer. They may assume that this helps customers quickly and easily understand what the company does, or is good for search engine optimization. Perhaps, but a good marketing team will steer its clients toward a strong and distinctive mark that helps distinguish their products in the marketplace, and away from a mark that merely describes what they do.

Not only do descriptive names make for weak brands, they are typically also not protectable as trademarks. The strength of a particular trademark is evaluated on a spectrum of distinctiveness ranging from the strongest fanciful marks to the weakest descriptive marks, which may not be protectable at all.

Notice, Notice, Notice! Are your internet policies enforceable?

Meyer v. Kalanik


Court Declines to Enforce Uber’s Terms of Service

By: Nicole A. Syzdek, Associate, Brand & Branch LLP

On July 29, 2016, the Southern District of New York in Meyer v. Kalanick declined to enforce the arbitration provision of Uber’s Terms of Service on the grounds that the plaintiff did not have adequate notice of, and consequently did not consent to, Uber’s Terms. Since each online user interface differs, there is no bright-line rule to ensure the enforceability of your terms of service. Nevertheless, decisions like Meyer are instructive in helping business owners understand how to ensure that their own terms of service are enforceable if violated. 

USPTO Issues Major Ruling on Cannabis Trademarks

In re Morgan Brown

Is the sky falling, or is there still hope?

On July 14, 2016, the Trademark Trial and Appeal Board of the United States Patent & Trademark Office (USPTO) issued a decision refusing to register the mark HERBAL ACCESS for use in connection with "retail store services featuring herbs" on the grounds the mark was being used with the sale of marijuana in violation of federal law. While this decision presents some new hurdles, it doesn’t change what cannabis businesses have been required to do all along—find creative, legal ways to secure trademark rights at the USPTO.