Cannabis is not legal under federal law, with the exception of some hemp-based products. Instead, the plant and products derived from it are grown, processed, sold, and used under a patchwork of state regulations. This presents a challenge for entities looking to claim and protect their stake in the growing industry, which is expected “to reach nearly $30 billion by 2025.”
Protecting valuable intellectual property in the cannabis industry requires a well-planned strategy that emphasizes forward thinking.
While cannabis companies can’t receive federal trademark protection, there are other options. Trademarks tangentially related to cannabis may be eligible for a trademark. This may help you prepare for the future, as “securing federal trademark registration protection now for goods and services that are lawful can preserve future trademark rights for cannabis-related products and services that are currently unlawful.”
You can also apply for state trademarks in states where cannabis is legal. This is most effective when done not just in the state(s) where you operate, but all that have legalized it. There are many countries around the world where cannabis is legal; trademarking internationally is also a relevant potential IP strategy. Regardless of which trademark strategy is best for your business, a trademark clearance search can help you identify potential roadblocks to federal protection in the future.
Unlike trademarks, patent protection is not restricted by the Controlled Substances Act. Cannabis-related technologies are eligible for design, utility, and plant patents. This tactic for protecting cannabis IP is still in its infancy. On one hand, very little prior art exists, increasing the chances of being granted valuable patent protection. On the other, the ability to protect your patent in court is very much unknown.
Trade secrets do not require approval from the USPTO, and both state and federal laws exist to protect trade secrets. This method for protecting your cannabis IP is best for technology that cannot be reverse-engineered easily. It requires a contract, as well as other “reasonable steps to maintain the secrecy of the proprietary information.”