Another Trademark Setback for CBD Products

The Trademark Trial and Appeal Board (the “TTAB”) affirmed this month a decision by the United States Patent Trademark Office (“USPTO”) denying cannabis brands, specifically products containing CBD, from getting trademark protection for dietary supplements.

The case began with a March 18, 2015, trademark filing for “CW” by the Colorado-based cannabis company Stanley Brother Social Enterprises, LLC as a dietary supplement. The examiner at the USPTO rejected the filing because Stanley Brothers was selling dietary supplements containing CBD under the brand CW, which is expressly not allowed by the Food and Drug Administration (“FDA”).

Since 2018, when the Food and Drug Administration approved Epidiolex, a drug with CBD as an active ingredient for treatment of two epilepsy disorders, the FDA has considered CBD to be a drug and therefore cannot be considered a dietary supplement. It was the FDA’s designation of CBD as a drug and not a dietary supplement that the TTAB relied upon in denying the CW trademark to the Stanley Brothers. The TTAB stated that there is no legal basis for the Stanley Brothers to obtain a trademark for CBD-based dietary supplements since “there is no evidence of record that CBD was marketed in food before the substantial clinical investigations of CBD.”

While this opinion was not necessarily a surprise given how the USPTO has been handling cannabis applications, it does highlight the difficulties cannabis businesses, even federally legal ones, can face when trying to expand and grow their brand. McAllister Garfield routinely assists clients in and out of cannabis in determining the correct trademark strategy for their brands, including providing solutions for federal filings for dietary supplements in other classes. If you have any questions or need help
navigating a cannabis trademark application, please contact us.

Dan Kramer