The document discusses how to build, register, license, and protect cannabis brands through intellectual property. It explains that brands involve unique identifying materials like company name, logo, and reputation. Intellectual property includes patents, copyrights, trademarks, and trade secrets. While federal trademark registration protects brands nationwide, the USPTO will not register cannabis brands due to federal illegality. However, indirect protection is possible through apparel, websites, and other legal goods/services. State registration provides an alternative for cannabis businesses.

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Cannabis and Intellectual
Property
HOW TO BUILD, REGISTER, LICENSE, AND PROTECT YOUR BRAND
TRAVIS COPENHAVER | CANNABIS LEGAL GROUP

2. What is a Brand?
• A “brand” is traditionally considered a set of
unique identifying materials that
differentiate one from its competitors.
• It’s the name of your company, your logo,
and your footprint in the industry.
• Your brand is typically associated with a
level of quality or credibility and becomes a
representation of your reputation and
identity in a marketplace.
• Branding can be broad, such as an overall
corporate identity, or narrow, such as
tailored a specific product.
• Communications in any form can have an
impact on customers’ perceptions

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Think different®

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Why should you develop your brand?
• Distinguish your products and services
• Simplify consumer decisions
• Simplify product handling
• Protect unique features
• Brand loyalty
• Brand reputation
• Marketing and Advertising
• Professionalism

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What is Intellectual Property?
Intangible property, creations of the mind
Creative works and inventions which exist in a form that can be shared, recreated, emulated, or
manufactured
Types of IP:
• Patents
• Copyrights
• Trademarks
• Trade Dress
• Trade Secrets

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Intellectual Property Rights for Goods

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How do Brands & Intellectual
Property overlap?
Focus on the “Property”
• Intellectual Property involves ownership
• Something you own that you can possess, use, enjoy, or dispose of
• You can prevent others from possessing, using, enjoying, or disposing
Your brand will involve a collection of materials and concepts
• Some of these key materials can (and should) be protected
• Some materials you might want to protect will not qualify for protection due to the limitations of IP

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Patents
•Property rights granted to an inventor to exclude others from using, making, or selling an
invention
•A monopoly over an invention
•Only new, specific, non-obvious inventions will qualify

11. Utility Patents
• Inventions involving machines, processes, methods, and compositions
• Anything manufactured that has a useful and specific function
• According to the United States Patent and Trademark Office (USPTO), 90% of patents are utility patents

12. Design Patents
• Inventions involving aesthetic appearance, design, shape, or general ornamentation
• This protects only the appearance of an article, but not its structural or functional features

13. Plant Patent
• Protects the discovery or invention of
plants that are asexually reproduced
• Hybrids (not counting the 1st generation),
mutants, sports, and other plant varieties
can have plant patents
• Designed to prevent others from growing
and selling plants or seeds
• There are currently several plant patents
pending before the USPTO for cannabis
related inventions
• Patent No. 6,630,507: Cannabinoids have
been found to have antioxidant properties,
unrelated to NMDA receptor antagonism.
(Owned by the U.S. Government)

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Trademarks
Any word, symbol, image, slogan, or other observable feature used to identify the source of a
good or service
Branding materials used specifically to label and identify products or offerings
Key concepts
• The mark
• Use in commerce
• Connection to the product or service
• Source identification

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Copyrights
Original works of authorship fixed to a tangible medium
Creating something and reducing down
• Books, songs, movies, photographs
• Websites
• SOP’s
The Right to Copy
• The right to reproduce and create derivative works
• For example, changing the color or background of a logo
• Modifying something for specific uses

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Trade Secrets
Any secret information that a company deems of value
Secret formulas
◦ Coca-cola® receipe
◦ KFCTM secret blend of 11 herbs and spices
Customer lists
Nutrient recipes
Secrets can be protection forever, so long as the information does not become public

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Using IP Protection to Protect your Brand
• Identify key materials
o Company name
o Product names
o Logo
o Slogans
o Website layout
o Advertisements
o Created documents
• Identify available protections

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Trademark Protection
A trademark cannot exist if it is not tied to a specific good or service
• Identify the Mark
• Identify the Product or Service
Examples:
• McDonald’s® refers to a line of fast food restaurants
• Apple® refers to computers, phones, and retail stores
• Nike® refers to shoes and apparel products

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Different Levels of Trademark Protection
Common Law Trademarks
• Protection through use alone
◦ Limited to actual use and geographical locations
State Registered Trademarks
• Establishes additional protections
◦ Limited to a state’s borders
Federally Registered Trademarks
• The highest level of trademark protection
• Protection in all 50 states and U.S. Territories

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Benefits of Federal Trademark Registration
• Legal presumption that owner of the mark
• Legal presumption of right to use the mark
• Puts public on notice of ownership of the mark
• Mark is listed in the USPTO database
• Registration can be recorded with U.S. Customs and
• Border Protection to block counterfeiting from entering.
• Right to bring legal action concerning mark in federal court
• Use registration as a basis for foreign filing
• Able to use the federal registration symbol: ®

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Trademark Challenges for the
Medical Marihuana Industry
• Trademark registration is a federal protection, so the USPTO will not register marks that describe goods
or services that violate the Controlled Substances Act.
• This includes any product or service that involves manufacturing, distributing, dispensing, or possessing
marihuana or marihuana-based preparations.
• The USPTO will not register any mark that involves “drug paraphernalia” or any equipment, product, or
material of any kind which is primarily intended or designed for use in manufacturing, compounding,
converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise
introducing marihuana into the human body.
• Not only are actual marihuana products prohibited, any ancillary tools, equipment, or services directly
involving marihuana will not qualify for registration.

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State Trademark Options
FEDERAL TRADEMARKS
• Filings cannot violate the Controlled Substances Act (Or any law)
• Comprehensive Examination
• Nationwide protection
• Options for Custom and Boarder Patrol or Foreign Trademark Rights
• Federal review for “confusingly similar marks”
• Legal presumptions in court
• Access to the federal court system
• Potential for additional damages
• Potential for attorney fees
• Potential for statutory damages
STATE TRADEMARKS
•Medical marihuana is legal under state law and qualifies for mark
registration
•Examination process is not very thorough
•Protection limited to the state
•Rights are not as robust as federal marks, nor are they litigated as
often in the state court systems
•Access to, and additional rights in the state you have registered
•Must register on a state by state basis
•Must have actual use in the state to file
•Good option for marijuana businesses, poor option for most other
industries

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Other Federal Options
Establish Indirect Protection
• Think about your brand as more than marijuana
• What other products or services do you provide?
Qualifying Goods and Services
• Apparel
• Merchandise
• Informational websites – blogs, educational materials, advocacy
• Get creative
Example:
• High Times® - magazines and books about cannabis

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Examples of Federally
Registered Cannabis
Trademarks

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Bay Area Green Cross Dispensary, LLC
Owner: Bay Area Green Cross Dispensary, Inc.
Service: Providing a website featuring medical
cannabis resources, namely, providing online
medical information pertaining to medicinal
cannabis
Registered: April 28, 2015

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Om of Medicine
Owner: Om of Medicine (Ann Arbor, MI
Dispensary)
Education services: providing on-line research
articles and resources in the field of medical
marijuana
Registered: February 10, 2015

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Loud Amerika, LLC
Owner: Loud Amerika, LLC
Products: T-shirts
Registered: April 4, 2017

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420 Unlimited, LLC
Owner: 420 Unlimited, LLC
Products: apparel, including Hoodies; Jerseys;
Shirts; Sweatpants; Sweatshirts; T-shirts; and
headwear
Registered: September 26, 2017

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Brickley Media, LLC
Owner: Brickley Media, LLC
Service: On-line journals, namely, blogs
featuring food and discussing gourmet edibles
Registered: September 5, 2017