9 May 2019Trademarks

USPTO hashes out new guidelines for hemp TMs

The  US Patent and Trademark Office has issued guidelines on how it will handle trademarks for hemp businesses, following the legalisation of hemp in the US in 2018.

The  guidelines, which were issued May 2, said hemp businesses were able to apply for trademark registration as long as their goods and services fall outside the Food and Drug Administration’s ( FDA) regulations for products containing cannabis-derived ingredients.

In December 2018, US president Donald Trump legalised hemp by signing the 2018 Farm Bill. According to the new law, hemp is legal as long as it contains no more than 0.3% THC, the psychoactive constituent of cannabis.

In its guidelines, the USPTO said applications filed before the bill was passed that identify goods encompassing hemp products will be refused registration. However, if the goods are now potentially lawful, examiners will give applicants the option of amending the filing date to after the bill was passed.

For applications filed on or after December 20, 2018 that identify goods encompassing cannabis or cannabidiol, the 2018 Farm Bill potentially removes the CSA as a ground for refusal of registration, but only if the goods are derived from “hemp.”

It said the amended application must also specify that the goods covered by the trademark contains less than 0.3% THC.

The Farm Bill explicitly preserved the FDA’s authority to regulate products containing cannabis or cannabis-derived compounds.

This means that businesses registering trademarks for goods such as oils, lotions and soaps will be able to trademark their products, but anyone with a food- or drinks-related product will need to seek FDA approval.

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