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USPTO Issues Examination Guidance For Cannabis And Cannabis-related Marks

The 2018 Farm Bill amended the Agricultural Marketing Act of 1946 (AMA) to remove “hemp” from the Controlled Substances Act’s (CSA) definition of marijuana.

“Hemp” itself is defined as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.”

The newly issued Examination Guidance clarifies that the United States Patent and Trademark Office (USPTO) will refuse to register marks with goods that show a clear violation of federal law, regardless of the legality of those same goods under state law.

For applications filed on or after December 20, 2018, the Farm Bill removes the CSA as a ground for refusing registration if the associated goods are derived from “hemp” and the identification of goods specifies that they contain less than 0.3% THC.

For applications filed before December 20, 2018, the application may be amended to change the filing date to December 20, 2018, and to establish a valid filing basis. Specifically, if the original filing basis was use based, the application may be amended to change the filing basis to intent-to-use. Also, the original identification of the goods must be amended to specify that any identified CBD or cannabis products contain less than 0.3% THC.

Instead of amending the original application, the applicant may abandon the application or submit evidence and arguments against a pending refusal.

For applications that recite services involving the cultivation or production of cannabis that is “hemp,” the examining attorney will also issue inquiries concerning the applicant’s authorization to produce hemp.

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