What advice would you give your clients about brand protection in your jurisdiction? Is it easy to trademark a cannabis brand?

The federal government, which controls the federal trademark registration practise, has not legalised marijuana or cannabis up to now. It’s not possible to get a federal trademark registration for cannabis products generally. As such, you are not going to be in a position to, for example, obtain a trademark registration for your particular brand of marijuana.

However, the good news is that regulations are loosening around it. About a year and a half ago there was a change where hemp-derived products (including hemp-derived CBD) containing a THC level of less than .3% were decriminalized. Now, if the THC level is below .3% in the final product, you could obtain registrations for certain products. The Trademark Office now requires that applicants state, for example, the THC percentage to ensure that the THC-containing product to be offered under the trademark is compliant.

But my view is that it’s important to advise clients that legalization is going to happen at some point. Trademarks for these products are going to be registerable. For clients, it’s important to start building their brands and doing what they can to secure the necessary protection. One client I have is in insurance and they’re going to be able to secure trademark registrations in the general area without specifically calling out that their services will relate to, among other things, marijuana-related treatments.

For example, you can register your trademarks for lighters or for certain types of pipes. Those items aren’t necessarily
marijuana specific. Therefore, if you start to build your brand on some of these collateral items, at some point you’re going to be in a position to have those brands at least somewhat protected when the opportunity presents itself to obtain registrations for additional items.

Those are some of the immediate things that that come to mind from my perspective.