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Checking in on the marijuana-intellectual property issue

Last summer, we wrote about one of the legal complications that arose in the wake of recreational marijuana becoming lawful in the state of Colorado. Small growers were having trouble protecting their intellectual property because federal law considers marijuana to be an illegal drug.

For example, in order to best protect their cannabis plant strains, growers would have to obtain a patent, but the U.S. Patent and Trademark Office does not issue patents to things that are illegal under federal law.

Nearly a year later, not much has been resolved, Law Week Colorado recently reported. The Patent and Trademark Office still isn’t really sure how to handle applications for patents and trademarks from the legal cannabis industry, and appears to be taking one case at a time.

When it comes to asking for trademarks, Law Week Colorado reported that the federal office still does not approve trademarks for anything “immoral, deceptive or scandalous,” including things prohibited by federal law. Thus, federal patents and trademarks both still appear to be out of reach.

As we discussed in our post from last year, it could take a marijuana business appealing a rejected patent or trademark in order for the courts to rule on the issue.

Until then, patents to protect cannabis strands may have to be put on hold, while intellectual property attorneys will have to get creative with how they help their clients protect their brands.

One way to do this could be through a state-issued trademark in Colorado, though this doesn’t offer the same safeguards as a federal trademark would.

Additionally, Law Week Colorado reported that federal trademarks may be possible for products and businesses that are only somewhat related to cannabis. For example, growers may be able to register their cannabis strain name for a clothing line or a food line, but not the cannabis plant itself.

Ultimately, this is a cutting-edge area of law that has a lot of catching up to do. Talk to an experienced intellectual property attorney for more information.

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