When adult-use marijuana became legal in California on Jan. 1, the California Secretary of State’s office followed the news by accepting trademark applications for cannabis products. As long as those products “are lawfully in commerce under California law,” according to Secretary of State Alex Padilla’s office, they may be eligible for registration.
It was an unexpected move in the largest legal cannabis market in the world. Marijuana remains illegal under federal law, and so the U.S. Patent and Trademark Office (USPTO) does not register cannabis products. States that oversee legal and regulated cannabis may allow trademark registration through their own trademark registries.
A key component of state trademark law is the matter of intrastate commerce. In this case, cannabis products are eligible for California trademark registration only if they are actively being sold within the state of California at the time of registration (and only if they comply with state law). An “intent-to-use” application, which exists at the federal level, will not be applicable for cannabis product trademark registrations in California.
As Evoke Law explains: "In order to obtain protection you must: 1. Obtain a manufacturing or cultivating temporary license; and 2. Product must fully comply with MAUCRSA and the emergency regulations packaging and labeling requirements."
And even if a company obtains a registered trademark for a cannabis product, that will not impact any future applications with the USPTO. According to case law: “[T]he fact that the provision of a product or service may be lawful within a state is irrelevant to the question of federal registration when it is unlawful under federal law.”
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