TTAB

If You Forgot About In re Morgan, In re PharmaCann Is Here to Remind You

It seems every few months the Trademark Trial and Appeal Board (“TTAB”) revisits its precedential decisions, In re Morgan and In re JuJu Joints, which we summarized in previous posts.

Enter In re PharmaCann LLC, in which the TTAB again confirmed that to qualify for a federal registration, the use of a mark in commerce must be lawful and any goods or services the mark covers must not be illegal under federal law.

PharmaCann submitted federal trademark applications for PHARMACANN and PHARMACANNIS for “retail store services featuring medical marijuana,” and “dispensing of pharmaceuticals featuring medical marijuana,” both of which the Examining Attorney categorically refused as not in lawful use in commerce. The Examining Attorney also included in the record two articles discussing PharmaCann’s intention to operate a medical marijuana dispensary in Illinois, where PharmaCann is located and where dispensing medical marijuana is lawful.  

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.

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.

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