Brand & Branch Issues Public Comment on Proposed California Cannabis Regulation

The proposed regulation would prohibit common industry practices such as white labeling and IP licensing

Our firm has prepared a public comment in opposition to the following Proposed California Regulation issued by the Bureau of Cannabis Control:

§ 5032. Commercial Cannabis Activity
(b) Licensees shall not conduct commercial cannabis activities on behalf of, at the request of, or pursuant to a contract with any person that is not licensed under the Act. Such prohibited commercial cannabis activities include, but are not limited to, the following:
(1) Procuring or purchasing cannabis goods from a licensed cultivator or licensed manufacturer.
(2) Manufacturing cannabis goods according to the specifications of a non-licensee.
(3) Packaging and labeling cannabis goods under a non-licensee’s brand or according to the specifications of a non-licensee.
(4) Distributing cannabis goods for a non-licensee.

You can read the full text of our public comment by clicking here.

Hemp for the Hempless? What Legalized Hemp Could Mean for Cannabusiness

April and June 2018 were months of major moves toward federal legalization of cannabis. Part of that push was led by Senate Majority Leader Mitch McConnell (R-KY), who, in April, introduced the Hemp Farming Act (HFA), which provides for the removal of industrial hemp from Schedule 1 of the Controlled Substance Act  (CSA). In June 2018, the HFA was rolled into the 2018 Farm Bill, and on June 28, 2018, the Senate passed its version of the Farm Bill, which included the entire HFA. The House also passed its version of the Farm Bill, but it’s silent on hemp. Many speculate that the House version stems from confusion of hemp with marijuana that—once cleared up—would greatly increase the chances of the Senate version becoming law.

If the Senate version of the Farm Bill prevails, it would end a nearly century-long federal prohibition of hemp as an agricultural commodity. Ending this prohibition would mean all hemp-derived products—including cannabidiol (CBD)—would be legalized. It would also harmonize the CSA and 2014 Farm Bill (currently in effect) definitions of marijuana and industrialized hemp as well as severely undermine the Drug Enforcement Administration’s position on CBD.

O Cann-ada! Cannabis Opportunities Far and Wide

This year, Canada will become the first G-7 country to legalize recreational cannabis nationwide—at all governmental levels—creating a bounty of business, investment, and brand expansion opportunities.

The Canadian market is attractive not only because cannabis is legal throughout the country, but also because Canadian cannabis companies have international export abilities. Many of Canada’s licensed producers (LPs) (many of which are also publicly traded) are involved in international markets like Europe, Australia, South America, and Israel, creating the potential for an even broader customer base than Canada’s 36 million residents. Many of these LPs are also able to seek cultivation facility licenses with investors abroad. All this combined with a predictable, transparent regulatory system makes Canada ideal for American investors and entrepreneurs looking to seize an opportunity in an emerging market.

Whether you are seeking an investment opportunity or are interested in exploring Canadian partnerships for your brand, the first step is to contact us. We can help you navigate this growing terrain, negotiate licensing and partnership agreements, and maximize your brand value.

State Trademark Registration: Is It Worth It? You Should Work It.

As a business owner, you likely already understand the importance of protecting your brand. Among other things, a strong brand means greater value and increased customer loyalty. But as a canna-business owner, given the tensions between state and federal regulations, brand protection can be challenging, particularly when it comes to trademark law.

            You may know how difficult it is to obtain a federal trademark registration for cannabis products, and perhaps you’ve given up pursuing one. But have you considered a state trademark registration?

Green Crack(down): FDA to Enforce Against Cannabis Health Claims?

Commissioner Scott Gottlieb of the U.S. Food and Drug Administration (FDA) thinks it’s “high time to start looking at rules around [cannabis].” Given that twenty-nine states and Washington, D.C. have already legalized medical marijuana, Gottlieb’s concern is a little late, but it signals change is afoot.

From a branding and advertising perspective, what might this mean? For now, that depends on a company’s labeling and advertising. The FDA has extensive power to regulate food and drugs, and it determines whether something is a food or drug by looking to product labels and advertisements. If a label or advertisement makes health claims signaling to the FDA that the substance is a drug, the FDA will view it with great scrutiny.

Trademark Filing Services: To Use or Not to Use?

Trademark filing services, like Legal Zoom or Trademarkia, can be cost-effective solutions in some instances. But they may not be an ideal fit for cannabis companies, which face unique trademark and other legal issues. Trademark protection in the cannabis space requires nuanced, tailored advice, not a one-size-fits-all, quantity-over-quality approach. In determining your trademark protection needs, consider the following, which contrasts guidance available from a trademark filing service with what a firm offers.

Straining for Protection

Earlier this year, the company GG Strains gained national media attention when it was issued a trademark registration for the strain Gorilla Glue #4. (Not as much attention as GG Strains received a couple months later when it was sued by the actual glue company, but that’s a subject for another blog post.) A trademark registration, you ask? For a strain name? Not so fast—it was a Colorado state registration for GORILLA GLUE #4, and the Colorado Secretary of State also issued a registration for an accompanying design mark, both in Class 031, covering “medical cannabis, the specific Gorilla Glue #4 hybrid cannabis plant strain.” These registrations are surprising, given that as a matter of law, a cannabis strain name cannot function as a trademark.

Buds R NOT Us: Choose Your Trademark Wisely

Buds R NOT Us: Choose Your Trademark Wisely

In late August, Buds R Us, a small medical marijuana dispensary in Detroit, Michigan, received a cease and desist letter from counsel for Toys R Us, Inc., the international toy company, alleging trademark infringement. At issue are two marks—the word mark BUDS R US, and a design mark featuring a giraffe with bloodshot eyes smoking a cone joint. The marks are used in connection with cannabis and related goods.  The letter claimed that use of these marks by Buds R Us creates a likelihood of consumer confusion with the TOYS R US word mark and the design mark depicting Geoffrey the Giraffe, the Toys R Us mascot, both of which are used to sell toys. In response, Buds R Us decided to change its name and branding.

There are a few key lessons here for cannabis companies.