A confusing patent office ruling renders it unlikely that any CBD products can be trademarked anytime soon.
The good news for Cannabidiol (CBD) extract and products manufacturers is that they finally have more clarification on which products can and cannot trademarked. The bad news is that the U.S. Patent and Trademark Office has issued guidelines that make CBD products nearly impossible to trademark, according to an analysis from Cannabis Business Times.
“CBD product applications may no longer be immediately accepted under the United States Patent and Trademark Offices,” writes Cannabis Business Times’ analyst Christiane Campbell. Campbell is a brand consultant for a number of leading cannabis brands, and a partner with the prestigious law firm Duane Morris, LLP.
The revised U.S. Patent and Trademark Office (USPTO) standards are not a complete death knell for cannabis brands hoping to trademark a CBD extraction process, tool, or product. But they sure make it sound like any applying for a CBD trademark should not get their hopes up.
“Applications that cover cannabidiol (CBD) products will no longer be immediately accepted and may ultimately be rejected as violating the Office’s Lawful Use Rule,” Campbell says.
The “Lawful Use Rule” is a regulation specific to the USPTO. It’s derived from a few different policies and regulations of other government organizations, and but these policies are applied by the patent office to determine what is and what is not considered legal.
In the case of this CBD determination, the USPTO a uses a combination of the landmark 1970 Controlled Substances Act and a recent Drug Enforcement Agency ruling on CBD’s legal status as a regulation called Drug Code 7350.
When you hear cannabis or marijuana referred to as a “Schedule 1 drug,” this is a reference to the Controlled Substances Act’s five systems of drug categorization.
“The Controlled Substances Act (CSA) places all substances which were in some manner regulated under existing federal law into one of five schedules,” according to the DEA’s Controlled Substances Act site. “This placement is based upon the substance’s medical use, potential for abuse, and safety or dependence liability.”
“Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse,” the DEA explains on their drug classification page. “Some examples of Schedule I drugs are: heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3,4-methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote.”
But CBD had some hope of qualifying for product patent status after the DEA issued Drug Code 7350. The initial December 2016 version of Drug Code 7350 definitively excluded any extracts from the cannabis plant.
“The Drug Enforcement Administration is creating a new Administration Controlled Substances Code Number for ‘Marihuana Extract,’” the DEA said of CBD at the time. “Extracts of marihuana will continue to be treated as Schedule I controlled substances.”
But the DEA backtracked that decision in a March 2017 clarification on extracts. That clarification seemed to create some wiggle room for the potential federal legal definition of some extracts, particularly CBD.
“The new drug code (7350) established in the Final Rule does not include materials or products that are excluded from the definition of marijuana set forth in the Controlled Substances Act (CSA),” the update said. “The new drug code includes only those extracts that fall within the CSA definition of marijuana.”
This indicated a new non-narcotic code was possible for certain extracts. “If a product consisted solely of parts of the cannabis plant excluded from the CSA definition of marijuana, such product would not be included in the new drug code,” the DEA wrote.
But the USPTO’s recent ruling complicates the legality of CBD with a strange new variable that addresses which part of the plant the CBD was extracted from.
“The Office has noted that, because ‘CBD exists in only trace amounts in the two primary portions of the Cannabis plant, which is excluded from the [CSA] definition of marijuana, namely the mature stalks and seeds,’ that products comprised primarily of CBD necessarily must come from the flowering tops or leaves of the plant,” Campbell writes in her analysis. “If the CBD is derived from the flowering tops or leaves of the plant, it will be considered as being within the CSA definition of marijuana.”
This is a ruling that surely will create more confusion, even as CBD becomes more popular as a non-psychoactive therapy. But to make things simple, Campbell urges that CBD manufacturers simply not expect to receive federal trademark protection.
“At least for the foreseeable future and while the CSA and new drug code 7350 remain in place, products containing CBD derived from flowering tops or leaves of a Cannabis sativa L. plant are Schedule I substances under the CSA and therefore, in violation of federal law,” she writes. “As such, these violate the Lawful Use Rule and cannot form the basis of a U.S. Federal Trademark Registration.”
If there’s any silver lining for those hoping to trademark a novel process or CBD formulation, you can at least take solace in the fact that no one else can trademark whatever you’d hoped to register.