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Trademarks are product differentiators that help consumers recognize familiar brands that customers have come to associate with a certain perceived level of goodwill, reputation, quality, taste, consistency, and style. A form of shorthand, a unique signature of sorts, a trademark signals to consumers the source or origin of a particular good or service.

Walking into a McDonalds, we know how a cheeseburger is going to taste. Seeing a red and white striped curved awning with green domes that extend above the awning, we can expect to enjoy custard ice cream or Italian ice from Rita’s Italian Ice. Coffee served in a cup with a two tailed mermaid is, as we all know, from Starbucks.

Continue Reading Likelihood of Confusion: the <i>Sine Qua Non</i> of Trademark Infringement

Hurdles to Federal Trademark Registration Part 1 – Generic Marks

Despite being used lawfully in commerce, a trade or service mark may be refused registration by the United States Patent and Trademark Office (“USPTO”) under Section 2 of the Trademark Act of 1946 (the “Lanham Act”) if the proposed mark is “generic,” “merely descriptive or deceptively misdescriptive,” or likely “to cause confusion” with another registered or used mark.

Continue Reading You Shall Not Pass: Hurdles to Federal Trademark Registration

In recent years, various government branches and departments across the country who are responsible for policing the government’s own trademarks have been sending cease-and-desist letters and filing suit against local businesses that are using trademarks likely to either cause confusion as to the government’s sponsorship of or affiliation with the companies or dilute the famous qualities of the government’s distinctive marks.

Continue Reading Government Owned Trademarks: Give me Liberty or Give Me …a License?

While 46 states have instituted laws permitting or decriminalizing cannabis or cannabis-based products in some way, prior events this year created an environment of legal uncertainty.

Since 2013, cannabis companies have relied on guidance contained within a trio of memos from former deputy U.S. Attorney General James Cole, which detailed the federal government’s concerns with preventing marijuana distribution to minors, gangs, or into states where the drug’s sale remains illegal, as well as preventing the use of the drug as a pretext to traffic other illegal drugs, in use with violent firearms, driving under the influence, and growing marijuana on public lands or on federal property.

Those companies who were compliant with state cannabis laws and did not run afoul of any of these concerns basically considered themselves as being safe from federal prosecution.

But that security diminished earlier this year when U.S. Attorney General Jeff Sessions rescinded the guidance in the Cole memos. Continue Reading What You Need to Know About the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act

Recently, U.S. Representative Matt Gaetz introduced the Medical Cannabis Research Act (the “Act”), which would facilitate and encourage federally-approved clinical trials testing the medicinal effects of chemicals found in the marijuana plant. The bill is notable because, if passed, it would bypass the U.S. Department of Justice (DOJ) as it relates to marijuana research licenses and would put the task in the hands of Congress.

Currently, the House Judiciary Committee, which is responsible for the drug enforcement efforts of the federal government, approved the measure. If this bill passes, it would provide an opening for more medical marijuana research, which has been virtually non-existent at the federal level over the last five decades.

Notably, the Act increases the number of federally-approved manufacturers of research-grade marijuana from one to three and sets strict criteria for those manufacturers to obtain and renew their registrations. Currently, only the University of Mississippi is permitted to grow research-grade marijuana.

Continue Reading Expanded Medical Marijuana Research Bill Approved by Congress

On September 5, 2018, New Jersey Governor Phil Murphy announced that the NJ Department of Health (DOH) had received 146 applications from 106 different organizations to operate vertically integrated medical marijuana dispensary operations in the state. The application window closed on August 31, 2018 and the winners of the six for-profit licenses will be announced on November 1, 2018.

Each applicant had to identify in which of the three regions of New Jersey – North, Central, and South – the applicant was interested in operating an Alternative Treatment Center (ATC). Fifty applicants identified the northern region, 45 selected the central region, and 51 the southern region.

Continue Reading High Times in New Jersey: The Search for New Operators and Expansion of the Medical Marijuana Program

In 2017, two registration prohibiting provisions of the Trademark Act of 1946 (“The Lanham Act”) were found unconstitutional under the First Amendment. These decisions raise important considerations for persons and companies whose trademarks may have been previously denied registration on such grounds or those considering registration of plausibly disparaging or scandalous marks.

In Matal v. Tam, 137 S. Ct. 1744, 1765 (2017), the lead singer of the rock group “THE SLANTS” appealed The United States Patent and Trademark Office’s (USPTO) refusal to register his band name as a trademark on the principal register due to a Lanham Act provision which prohibits registration of marks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U.S.C. §1052(a).

The band members sought to take control of an Asian ethnic stereotype commonly used to criticize them but were denied registration because “slants” is a derogatory remark used to disparage those of Asian descent.

Continue Reading <i>Matal and Brunetti</i>: When Derogatory isn’t Derogatory

As of September 2018, nine states, including the District of Columbia, allow adult-use (recreational) marijuana and thirty-one states have adopted laws legalizing the sale and use of medical marijuana. The possession and sale of marijuana, however, remains illegal at the federal level due to the Controlled Substances Act’s classification of marijuana as a Schedule I narcotic alongside heroin, LSD, and ecstasy.

For a cannabis business operating within the bounds of state law seeking to enter the marijuana industry, the juxtaposition of marijuana’s quasi-legality raises important legal and practical concerns, one of the most pressing being access to banking. The Federal Bank Secrecy Act (the “BSA”), 31 U.S.C 5311 et seq, prohibits national financial and banking institutions from accepting money generated from the sale of cannabis, often forcing marijuana companies to operate on a cash-only basis and putting them at risk of criminal activity. The cannabis industry’s bout with banking has somewhat of a rocky history.

Continue Reading Don’t Bank on it Just Yet: Financial Services Uncertainty in the Cannabis Industry

With medical marijuana legal in more than half of the United States and nearly 70% of the country having access to medical marijuana, the clinical research on the health benefits and healing properties of cannabinoids is contributing to the growing empirical studies and evidence supporting the use of marijuana as an effective medicine.

Frustratingly, however, many medical cannabis patients suffering from debilitating conditions and diseases such as multiple sclerosis, cancer, muscular dystrophy, seizure disorders, anxiety, migraines, and chronic pain, must solely bear the cost of medicine in the form of cannabis because it is not covered by healthcare insurance. Although a physician’s recommendation of cannabis for a patient’s qualifying ailments is no different than a script for opioids, anticonvulsants, or antidepressants, the patient’s health insurance provider will cover the cost of the latter but not the former.

Why? Several reasons.

Continue Reading Availability of Medical Insurance Coverage for Medical Cannabis Patients

Recently, on June 25, 2018, the Food and Drug Administration (FDA) approved Epidiolex, which is a prescription drug containing cannabidiol (CBD) isolate. Epidiolex is the first FDA-approved medicine that contains plant-derived, non-synthetic cannabinoids. The drug is used for treatment of seizures associated with two rare and severe types of epilepsy: Lennox-Gastaut syndrome and Dravet syndrome. CBD is a chemical component of the cannabis sativa plant, also known commonly as marijuana. Another form of the cannabis sativa plant is hemp. Marijuana and hemp contain both CBD and tetrahydrocannibol (THC) components. The difference between marijuana and hemp is the amount of THC that each plant produces. While marijuana can produce up to 30% of THC, hemp can produce no more than 0.3%. Hence, the critical difference is that hemp has no psychoactive effect. Moreover, the Ninth Circuit also recently ruled that CBD derived from hemp is not a controlled substance.

Though the recent approvals do not change the state of the law with respect to marijuana, the tides are slowly changing. Epidiolex is now the first FDA-approved drug that contains substance derived from marijuana. It is therefore possible that the approval of Epidiolex may lead the Drug Enforcement Administration to review and reschedule the status of cannabinoids under the Controlled Substance Act (CSA).

Continue Reading How to Protect Cannabis Related Intellectual Property: Recent Developments & Tips for Cannabis Businesses