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IP concerns for Colorado cannabis businesses

The legalization of cannabis in Colorado has opened up new frontiers for entrepreneurs developing new products, strains or marketing methods. Just like in other businesses, however, intellectual property can be a major concern. People distinguish their products and services from one another with unique taglines, logos and branding, and trademark and copyright protection can be essential to formalizing that process. However, despite statewide legalization in a number of areas, the U.S. Patent and Trademark Office, or USPTO, continues to refuse registration for marks related to the cannabis industry, particularly for goods made from the cannabis plant.

Because many types of cannabis are still federally criminalized, the USPTO notes that these trademarks do not pertain to lawful federal commerce, rendering them inadmissible. There are state rights in trademark and common law rights, but those do not extend as far as those provided by federal registration. Federal registration provides the basis for national expansion as well as a presumption of validity and ownership of a particular trademark. The Farm Bill of 2018 officially removed hemp products from the federal definition of marijuana, meaning that products derived from hemp may now seek trademark recognition. However, CBD products from hemp still may face obstacles if they are not FDA-approved foods, drugs or cosmetics.

CBD products derived from marijuana as well as typical recreational cannabis products are still barred from registration. Some cannabis businesses are laying groundwork for future potential federal legalization by registering trademarks for their federally legal activities that do not involve the plant itself, such as cannabis-themed clothing, websites, podcasts or publications.

The expansion of the cannabis industry in Colorado has provided tremendous opportunity for many innovative businesses and startups. An intellectual property lawyer may provide advice and guidance on how to maximize protection for a business' unique ideas and presentation.

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