United States: USPTO Allows Hemp-Related Trademarks On Or After December 20, 2018

Federal trademark registrations are now possible to obtain for some hemp-related trademarks. The U.S. Patent and Trademark Office's (USPTO) recent guidance, Examination Guide 1-19 "Examination of Marks for Cannabis and Cannabis-Related Goods and Services after Enactment of the 2018 Farm Bill" issued on May 2, 2019 (Guide 1-19), clarifies the procedure for examining applications for marks covering cannabis and cannabis-derived goods and services in light of the Agriculture Improvement Act of 2018, Pub. L. 115-334 (also known as the "2018 Farm Bill"). Guide 1-19 does not change the requirements for obtaining a trademark registration, but instead explains that hemp-related federal trademark registrations (in certain instances) are not barred as a matter of law.

Until recently, the USPTO categorically denied registration of trademarks covering cannabis-related products or services deemed unlawful under the Controlled Substances Act (CSA). (See our articles discussing the same here, here, and here.) The 2018 Farm Bill has since legalized the production and marketing of "hemp." Hemp is defined as "the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis." 2018 Farm Bill, § 297A. Guide 1-19 explains that the 2018 Farm Bill removed "hemp" as a controlled substance under the CSA.

The 2018 Farm Bill does not legalize hemp-related products across the board. As Guide 1-19 explains, other statutes, such as the Federal Food Drug and Cosmetic Act (FDCA) and federal agencies such as the U.S. Food and Drug Administration (FDA), may limit the legal use of hemp-related products. Guide 1-19 makes clear that registration of marks for "foods, beverages, dietary supplements, or pet treats containing CBD will still be refused as unlawful under the FDCA, even if derived from hemp, as such goods may not be introduced lawfully into interstate commerce." (Emphasis added) (citing 21 U.S.C. §331(II)).

The USPTO has provided certain requirements that must be met for a hemp-related trademark to be eligible for federal trademark registration. The USPTO is allowing applicants the ability to amend earlier filed trademark applications to meet these requirements.

Requirements for eligibility

Derived from "hemp." The USPTO clarified that the 2018 Farm Bill potentially removed the CSA as a ground for refusal of registration, but only for goods that are derived from hemp (less than 0.3 percent THC on a dry weight basis).

December 20, 2018. Hemp-related trademarks are eligible for federal trademark protection if they have a filing date and date of first use on or after December 20, 2018. December 20, 2018, the day that the 2018 Farm Bill became public law, is the first date that the USPTO recognizes legal use of hemp and hemp-derived products.

Contains less than 0.3% THC. Identification of goods and services for hemp-related products must explicitly state that the products "contain less than .3% THC on a dry-weight basis."

Not illegal for other reasons. The USPTO is not claiming that everything falling within the definition of hemp is legal. Instead, Guide 1-19 explains simply, that one ground for refusal of hemp-related trademarks, i.e., the CSA, has potentially been removed by the 2018 Farm Bill. Thus, the identified goods and services may still be barred from federal trademark eligibility for other reasons. For example, the FDCA stands in the way of registration of marks for goods containing CBD.

Meet the requirements of the 2018 Farm Bill (Services). For applications that identify services involving cultivation or production of hemp, the applicant will be required to provide affirmative statements that their activities meet the requirement of the 2018 Farm Bill. For example, the 2018 Farm Bill requires hemp to be produced under license or authorization by a state, territory, or tribal government.

Applications filed before December 20, 2018

The USPTO has offered three options for applications filed before December 20, 2018.

Amend. The USPTO is allowing applicants the ability to amend their applications to conform with the requirements laid out in Guide 1-19.

  • Applicants may request to amend the filing date of their application to December 20, 2018. The applicant must specifically state for the record that the change is being authorized. Of course, this would result in a later filing date.
  • For applications based on use in commerce under § 1(a) of the Trademark Act, the applicant will be required to amend the basis to intent to use under § 1(b) of the Trademark Act.
  • Applicants will be required to amend the identification of goods and services to state that the products "contain less than .3% THC on a dry-weight basis."

Abandon and refile: As an alternative, an applicant can abandon their application and refile. This, however, would provide the application an even later filing date. Such a later filing date may present issues for trademark applicants.

Respond: Always an option, an applicant can respond to the stated refusal. This, of course, may be fruitless if the application covers goods or services that are unlawful for other reasons. Not all cannabis-related (i.e., non-hemp) trademarks are unregistrable, however. For example, services that are tangential to the cannabis industry and do not "touch the plant" may be eligible for registration. (See here, for our discussion of U.S. WEED CHANNEL and registrations related to Weed Maps.)

The USPTO is likely to see a flood of hemp-related trademark applications. Those operating in the hemp field should think and act quickly if they want to file trademark applications in order to obtain the earliest priority date and avoid potential headaches down the road.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Montgomery McCracken Walker & Rhoads LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Montgomery McCracken Walker & Rhoads LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions