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Trademarks & Cannabis in the USA

By: Kevin, October 8, 2018

Although cannabis is now legal for recreational or medicinal use in 29 states and the District of Columbia, with recreational use legalised in 8, it still remains illegal under federal law. It is of no surprise therefore that the U.S. Patent and Trademark Office will not register trademarks for companies who trade in cannabis or any product that contains it. The quandary that these companies find themselves is just one of the many “grey areas” that exists between state and federal cannabis law.

Legal squabbles so far have been very few due to the roots of the cannabis industry which has remained loyal and tight knit up to this point, it is still widely frowned upon to trade off someone else’s name and/or copy them. As time moves on however and more money is pumped in to and made out of the cannabis industry it looks increasingly inevitable that things will change. Competition will increase, and so will the capitalist, commercial nature of the industry as millionaire investors throw their hats into the ring.

The fact is that the cannabis industry will eventually turn into a commodity market. Like other commodities market the essentials for success are of course, a quality product but also a solid brand identity. It’s about having a name and a logo and a brand identity that people can feel comfortable, familiar and safe with. Brand image sells product, look at Nike, Coca Cola and Apple. People trust these brands, they don’t second guess anything they are buying, they trust in what they are told, what they stand for and become loyal customers who vote with their feet becoming repeat customers. With trademarking cannabis you’re not so much trying to protecting the plant but more so you are trying to protect the brand.

Trademarks & Cannabis in the USA

So what are companies within the ” legal” cannabis states in the USA doing at the moment to protect their interests now and in the future should the federal stance change? Well, in the eyes of federal law the only way that they can obtain a trademark from the U.S patent and trademark office is to trademark everything except the actual cannabis, this includes any products and services that don’t “touch” the plant, like consultation, information about medicinal benefits, marketing and packaging companies and media companies or items associated but not openly marketed for use with cannabis such as business names, logos, rolling papers, Clothing, lighters etc. This is a strategy known as “circling the wagons” protecting your main asset or main aim with your subsidiary assets.

By trademarking a brand and cannabis associated products companies hope that this will deter any other entrepreneurs from trying to steal and use the same name in association to similar products within the same market (cannabis). It is also hoped that it will put the company at the top of the cannabis trademark waiting list in the hope that one day the federal government will change its stance. and allow cannabis itself or anything containing cannabis to be trademarked and recognised at federal level. At present the closet anyone has got to obtaining a federal trademark for cannabis is for products containing CBD.

Much of what cannabis companies are doing presently concerning trademarking is just guesswork at this stage. As until and indeed if, the federal government review how they see cannabis, no-one knows for sure if the “circling the wagons” approach will necessarily work and that their cannabis-related trademarks would be able to pass straight over to actual cannabis products. So far there are no test cases or precedents to fall back on!

So where do things stand in regards to state law? As you may or may not know that last year (2017) the first cannabis strain was successfully trademarked in several “legal” states.

State trademarks are easier to obtain than federal trademarks, but do not provide the same level of protection as obviously each state trademark protects the product/business in that particular state alone. So you must obtain multiple state trademarks to protect your business in multiple states.

Even at a state level however, This is an important landmark step as when a cannabis strain is branded and is legit, it changes things. You suddenly have quality and you have consistency. Before legalisation there were no standards and things couldn’t be run with all the advantages that legal business has to offer. There was no protection for anyone, the owners, the retailers, the customers. There was no product testing or assurances, there was no advertising or pricing levels. People just shared amongst themselves, exchanged info online and served each other’s needs. Some honestly but some not so much! Popular strains such as Sour Diesel and Bubba Kush have been grown far and wide but the creators are largely unknown and unrewarded.

Up to now It has been pretty much unheard of for Breeders and growers to actually get credit and financial return from the strains that they have created, nor have they been able to control who grows it. If it was any other industry these rights would be assumed, registered and exercised without a second thought according to normal business practices. Just as they would be in order to protect your brands integrity and quality from unscrupulous imitators. This is why what the breeders behind the first trademarked cannabis strain GG#4 have done is game changing and is the first rung in the ladder to revolutionising the cannabis industry.

GG#4 (the artist formerly known as Gorilla Glue#4) has been somewhat of a superstar strain since its triumphant emergence just 4 years ago, with pretty much everyone claiming to have either smoked, grown or sold it at some point.

Accidentally created in 2012 in Las Vegas by , “Joesie Wales” and “Lone Watty,” GG#4 is the happy accident that occurred when the female “Chem Sister” plant hermied over to the Sour Dubb and was then crossed with a Chocolate Diesel. Seeds were produced but not germinated for a year or so and when they were the 4th phenotype was deemed the winner, being noted for not only its super strength but also for its superglue like stickiness and that is how Gorilla Glue#4 got its name and came to be.

An award winner at several Cannabis cup awards in 2014, the strain was gifted to private growers and 100 clones were sold at a cannabis cup in order to test out the strain’s stability. The strain was so good it was inevitably “leaked” by one or more of these opportunist growers and it was not long before GG#4 was commonplace in many dispensaries as well as in home grows.

A victim of its own strengths, had GG#4 not been leaked it probably would not have reached the level of infamy that it holds today. This bittersweet situation has been somewhat of a blessing and a curse as the breeders GGStrains have been subject to a legal wrangle surrounding someone else’s trademark. The “Gorilla glue” superglue company, who took issue over the name and how this could impact its own brand in a damaging way. The result of this was that Gorilla Glue #4 became GG#4. It didn’t take long before the creators, GG strain’s LLC saw the potential benefits and decided that they needed their own trademark to protect their popular strain, even if it was only state wide.

GGStrains has the first known cannabis trademark at State level for the GG#4 strain name and for that specific strain of medical cannabis plant itself in Colorado, Nevada and Washington with others in the pipeline. Of course these trademarks do not stand up on a federal level but it’s a good start and gives hope and some protection to the honest guys in the industry who are in it for the right reasons.

Trademarks & Cannabis in the USA

The guys behind the strain are concerned about authenticity, branding and ownership. GG strains are just 2 old school Growers, they haven’t sent anyone anyone anybody legal letters, threatening them to stop growing GG#4, they are not trying to close anyone’s business or stop anyone from growing this incredible variant. Instead, they are just protecting their creation and making an example of what Gorilla Glue should look like and smoke like, whilst also giving recognition to who created it and where it came from. They even have a company mission statement which is to “ensure all consumers and medical cannabis/marijuana card holders receive the same GG#4 each and every time they go to purchase.”

This is not a new problem. Dealers have been passing weed off as different strains for years and I’m sure just like me, everyone has had it happen to them at least once. It becomes more of a problem however when it is happening on a commercial level within the dispensaries. Chances are that if you go into any dispensary there will be a “fake” “GSC” “GG#4” “OG Kush” “Sour Diesel” “Zkittles” etc. strain available and if you bought half a dozen of the same strain from different dispensaries, chances are that they would all smoke differently

Like all good companies who pride themselves on the quality of the product, GGStrains want the end user to get the real-deal and not get scammed, as presently without any trademark legislation in place for cannabis this is all too easy to do. Anyone can put any name on any weed, illegally or even in a dispensary, sell it and watch the money pour in off the back of a good strain’s reputation, whilst you are just getting substandard weed. The breeders are without the luxuries that other industry’s enjoy such as quality control, uniform brand image and nationwide legal status, which means that strains become inconsistent and vary from location to location

This trademark precedent has set the bar for other growers and GG strains are seen as the breeders to follow and aspire to. They’ve become a real visionary company, showing what the future of the legal cannabis industry could be. Obviously as previously discussed no cannabis product has received a federally recognised trademark as yet and so the system is untested but hopeful. GG strains have big plans in the making and are functioning as a totally legal company with…marketing campaigns, new lines and licensing deals which could easily see them becoming one of the biggest players in the industry before or after any change in federal cannabis legislation.

So will trademarking strains on a State level stop distributors from passing off random strains of weed as something more special?? No, probably not completely, is the answer. Just like fake designer watches and handbags etc. You will never stop people from trying to make easy money, and they will always have a market as some consumers are just happy to smoke whatever they are sold at face value. What having a trademark will do though is give assurances and a symbol or sign of authentication to those who are looking for the real thing.

GG#4 have set a standard that hopefully the creators behind the next generation of new strains will follow as they strive to throw off the shackles of illegality and bring the cannabis industry out into the business mainstream, where they can be applauded and rewarded for their efforts as well as being able to control brand integrity.

By combining the use where possible of federally recognised trademarking of company names, logos and associated products with the state trademarking of actual plant strains, it places companies in the strongest position possible on the business playing field. There is a lot of money to be made from Cannabis and everyone knows it and some may say that as this movement gathers momentum that the USA government are inevitably going to have to move with it. This will mean that the breeders who already have various trademarks in place for cannabis associated products and/or cannabis containing products at state level should be sitting at the top of the list to receive the green light to keep and expand their existing trademarks.

The combination of state and federal trademarking laws can seem confusing, contradicting and limiting at present but the more that businesses take advantage of what is available to them in order to legitimise themselves as much as possible, the more chance there is of success and of the whole industry moving forward for the benefit of everyone from the breeders to the end users, both recreational and medicinal.

By Rich Hamilton

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