Cannabis IP: Is There a Major Shift Ahead?

Cannabis Feb 14, 2025 New York, NY

By: Gavin Strube, Esq. and Irina Dashevsky, Esq.

The legalization of industrial hemp in the 2018 Farm Bill resulted in the proliferation of thousands of consumable CBD and intoxicating hemp-derived products hitting the marketplace across the United States. These products are often manufactured without any regulatory oversight whatsoever. However, recently some states have begun to pass legislation and regulations to address such intoxicating hemp-derived products. Nevertheless, the legalization of hemp also provided a path for cannabis companies to one of the most important branding tools in the United States: a federal trademark registration. Traditional cannabis brands have long been barred from obtaining federal trademarks for their core products on the basis that the mark cannot be used in “lawful commerce” in the United States. Many brands have worked around this restriction, acquiring federal trademarks on ancillary products like clothing and creating a patchwork of state trademark rights in states that have legalized cannabis to some degree. The legalization of hemp allowed manufacturers to rush the field with applications that included a handful of “magic words” regarding the source of the “trace amounts” of CBD in their products and the confirmation that such products have a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis. The “magic words” have worked—until very recently.

The United States Patent and Trademark Office has recently begun issuing advisories to trademark applicants that the applications may be refused on the grounds that they cannot be used in lawful commerce even if the applications include the “magic words.” How does that position square with the federal legality of hemp? It is unclear at this time what precisely that means. This could be a signal of a shift in executive priorities as it relates to cannabis (new administrations always have at least some impact on the USPTO, even if it is usually minimal). It could also be a move towards FDA regulation and enforcement of consumable hemp-derived products, or any number of other explanations. Regardless of the basis, this development suggests that a previously reliable IP strategy may now be unsettled.

The Cannabis Law practice group at Greenspoon Marder is leading the way in IP developments and will continue to provide updates. For any IP questions or guidance on navigating the evolving legal landscape for cannabis and hemp, feel free to contact Gavin.Strube@gmlaw.com, Irina.Dashevsky@gmlaw.com or any of the Cannabis or IP attorneys at the firm.

About Greenspoon Marder

Greenspoon Marder LLP is a full-service law firm with over 225 attorneys and more than 20 office locations across the United States. With operations from Miami to New York and from Denver to Los Angeles, our firm attracts some of the nation’s top talent in key markets and innovation hubs. Our core practice areas include Real Estate, Litigation, and Transactional Services, complemented by the capabilities of a full-service firm. Greenspoon Marder has maintained a spot on The American Lawyer’s Am Law 200 as one of the top law firms in the U.S. since 2015, and our goal is to provide exceptional client service by developing a thorough understanding of each client’s business needs and objectives in order to provide strategic, cost-effective solutions.

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