While the cultivation of cannabis is permissible in certain situations, making commercial use of the plant is still difficult to do legally, which in turn makes trademark protection for cannabis products difficult to obtain. In In re Stanley Brothers Social Enterprises LLC, the Trademark Trial and Appeal Board (“TTAB”) provided no relief for such products, issuing a precedential decision affirming the refusal to register a trademark for a cannabis derivative marketed as a dietary supplement.

Stanley Brothers grows cannabis and produces various cannabis derivative products, one of which is an oil extracted from the cannabis plant containing a large amount of cannabidiol (“CBD”). CBD is a non-intoxicating substance undergoing clinical investigation for potential beneficial uses. Stanley Brothers calls its product a hemp oil extract and markets it as a general wellness product and dietary supplement.

Stanley Brothers sought registration of the mark “CW” for their hemp oil extract. The Examining Attorney refused registration, citing the provisions of the Trademark Act that prohibit the registration of marks for illegal goods. Specifically, a commercial mark is unregistrable if the application record shows that the associated product violates federal law in one of two ways: either the unlawful nature of the use is established by a court or other government agency with “competent jurisdiction,” or the use is per se unlawful. The Examining Attorney reasoned that Stanley Brother's hemp oil extract was per se unlawful under the Food, Drug, and Cosmetics Act (“FDCA”). Because CBD is a biological product or drug undergoing public clinical investigation, introducing foods containing CBD into interstate commerce violates the FDCA.

Stanley Brothers asserted three arguments on appeal, all of which the TTAB rejected.

First, Stanley Brothers argued that the Industrial Hemp Provision of the 2014 and 2018 Farm Bills excludes industrial hemp from the relevant sections of the FDCA. The Industrial Hemp Provision allows the cultivation of hemp for certain industrial purposes. However, the TTAB reasoned that Stanley Brothers' permission to legally cultivate hemp was irrelevant. The FDCA governs the addition of botanical compounds undergoing clinical investigation, and CBD is a botanical compound undergoing clinical investigation. Thus, the TTAB concluded that because the Farm Bills contained no provisions permitting the sale of CBD in food products while CBD is undergoing clinical investigation, the Industrial Hemp Provision did not exclude Stanley Brother's hemp oil extract from the FDCA.

Second, Stanley Brothers argued that its goods are dietary supplements, not food. The FDCA defines food as articles used for “food or drink for man or other animals” and “components of any such article,” and includes dietary supplements in that definition. Using this statutory definition, the TTAB found that Stanley Brothers' goods were food. The TTAB also noted Stanley Brothers' intention to adds its goods to beverages sold in different flavors.

Third, Stanley Brothers argued that CBD is exempt from the relevant sections of the FDCA because it was marketed for food before the clinical investigation began. Stanley Brothers introduced one piece of evidence in support of this argument, namely a press release by the Hemp Industries Association (“HIA”) positing that CBD use in food predated clinical study of CBD. Unpersuaded, the TTAB noted that the press release was an assertion of the HIA's position, not a statement of fact, and that the Food and Drug Administration disputes the HIA's assertion that CBD use in food products pre-dates clinical investigation of CBD. Due to the absence of any other probative or supportive evidence, the TTAB rejected Stanley Brothers' claim for an exemption.

Ultimately, because (1) the goods in question (food containing CBD) per se violated the FDCA, (2) CBD was undergoing public clinical investigation, and (3) the record contained no evidence that the marketing of CBD in food pre-dated the clinical investigation, the TTAB affirmed the refusal of Stanley Brothers' application.

The case is In re Stanley Bros. Soc. Enters., LLC, Serial No. 86568478 (TTAB June 16, 2020).

Originally published 13 July, 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.