Hope of Trademark Registration for Cannabis Vaporizer Goes Up in Smoke

See In re Canopy Growth Corporation by assignment from JJ206, LLC, Serial Nos. 86475885 & 86475899 (T.T.A.B., July 16, 2019).

A Canadian corporation, Canopy Growth Corporation (Applicant), filed two United States trademark applications – JUJU RX and JUJU HYBRID in standard characters – for smokeless cannabis and marijuana vaporizers based upon an intent-to-use the marks in commerce under Section 1(b) of 15 U.S.C. § 1051(b). The Examining Attorney for each application refused registration due to an absence of a bona fide intent to use the marks in lawful commerce.

On appeal, the TTAB agreed with the Examining Attorneys that the identified goods – vaporizers for cannabis or marijuana – were unlawful drug paraphernalia under the CSA as marijuana remains a controlled substance under the CSA. Because Applicant’s identified goods fell within the definition of illegal drug paraphernalia under the CSA, the Applicant could not have a bona fide intent to use the marks in lawful commerce. The TTAB, relying on a 2016 precedential decision, In re JJ206, LLC, 120 U.S.P.Q.2d 1568 (T.T.A.B. 2016), also rejected Applicant’s reliance on state marijuana laws that have legalized cannabis or marijuana, reasoning “the federal CSA is conclusive on the lawfulness issue for purposes of obtaining a federal trademark registration.”

This ruling further echoes the US Patent and Trademark Office’s Examination Guide for trademarks for cannabis and cannabis-related goods and services that “when applications recite services involving cannabis-related activities, they will be examined for compliance with the CSA and the 2018 Farm Bill.”

This case serves as an important reminder that despite the decriminalization of cannabis by many states and the rapidly growing cannabis industry, if an applicant’s goods and/or services violate federal law, the United States Patent and Trademark Office will refuse to register the marks.