With so much competition , cannabis cultivators would be wise to trademark their prized genetics . Karen Lloyd details what ’ s required and why it ’ s challenging for U . S . growers .
by Karen Lloyd
Amendments to the Canadian Trademarks Act in 2019 make it easier for cannabis growers to get their strains into the Canadian market and take them globally . Cannabis cultivators in Canada can now apply for a trademark , even if they haven ’ t entered the Canadian cannabis market . Additionally , non-traditional marks like scents , tastes , and textures may be registered as well . Dave Ward , a grower in Tofino , B . C ., has 60 cultivars on the go and a few he ’ s currently working on trademarking . “ I ’ d say our Banana Candy is what we ’ re most known for ,” says Ward . “ I hope by next year we should be able to market to LPs .” A registered trademark not only helps consumers pick out high-quality cannabis products from the crowd , but it also protects products under law from exploitation by others . This can go both ways . In 2021 , well-known restaurant Subway took cannabis store Budway to court and won . The case showed the swift and serious consequences for companies that use parody trademarks to build their brands on the backs of established businesses . Similarly , in 2020 , Herbs ‘ R ’ Us Wellness Society lost a trademark battle against Toys ‘ R ’ Us .
HOW TO GET A CANADIAN TRADEMARK REGISTRATION FOR YOUR CANNABIS STRAIN
A trademark is a combination of letters , words , sounds , or designs that will distinguish your cannabis strains from those of others at the local pot shop . Considering this , the more generic your trademark , the easier it is for others to claim as their own . In the cannabis industry , avoid using extremely common terms such as “ green ,” “ 420 ,” and “ Mary Jane .” The more distinctive your trademark , the more difficult it will be to copycat . Let ’ s look at how to trademark your cannabis cultivar in Canada . First , search the Canadian Intellectual Property Office ( CIPO )’ s Trademark Register for pending and registered marks that could be considered “ confusingly similar ” to your label . Then search the internet to ensure your trademark idea is available for use and registration . Next , apply to the CIPO along with a cheque for $ 336 ( to cover government filing fees ). A trademark examiner will then review your application and search the Register for any marks that are considered “ confusingly similar .” Any shortcomings must be resolved before CIPO will accept the application . Finally , the CIPO will then advertise your application in the Canadian Trademarks Journal for two months . If no one opposes your application , it can proceed to registration . The updated Trademark Act also allows growers to file centrally for registration in 120 countries while relying upon a foundational Canadian application . This is called the Madrid Protocol . Regulations still limit the frequency of cannabis trademarks on the packaging , as well as the size of the logo text , the color scheme , and the potential influence of the mark to minors . Most applications in Canada are processed within 18 to 24 months .
CHALLENGES WITH TRADEMARKING CANNABIS IN THE UNITED STATES
With so much red , white , and blue tape , trademarking cannabis strains in the U . S . is anything but a green light for growers . The U . S . Patent and Trademark Office ( USPTO ) issued guidance in 2019 , stressing trademarks must be “ lawful ” under federal law . However , while trademarks for cannabis cannot be federally registered , CBD products containing no more than 0.3 percent THC are legal under the 2018 Farm Bill .
“ With so much red , white , and blue tape , trademarking cannabis strains in the U . S . is anything but a green light for growers .”
Even if cannabis growers encounter issues with registering their strains , it may be possible to apply for trademark registration in states where cannabis is legal . Growers in the U . S . should also consider filing their cannabis-related trademarks in Canada . While a Canadian registration only establishes rights in Canada , it may enable a U . S . cannabis grower to challenge a brand copycat if it can show American consumers are familiar with the mark in Canada .
CONCLUSION
Although many growers would rather deal with rolling papers than paperwork any day , trademarks are important to cultivators in an increasingly overgrown cannabis market . Not only will they protect your unique strain , but over time , the trademark will protect your reputation . Consumers of all products like what they know and trust . “ I think hard work is the path to all things worthwhile ,” says Ward .
Despite the lengthy paperwork fill process , there are more than 5,000 cannabis-related trademarks currently pending at CIPO .
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