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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

Trademarks are a popular and effective way of building and protecting a business’s brand. A trademark can be any word, name, symbol, or device, or any combination thereof that identifies and distinguishes a maker’s goods from those manufactured or sold by others.

Trademark owners enjoy certain intellectual property rights and protections against infringement. These rights are earned through the actual use of the mark in the marketplace or through registering the mark with either the state or federal government. Trademarks are source identifiers that distinguish competing products and give businesses brand recognition among discerning consumers. They are also powerful tools for growing businesses and start-ups.

Not all marks, however, are eligible for federal registration as a number of cannabis-touching businesses have learned the hard way.

Continue Reading How to Protect Cannabis Related Intellectual Property: Trademarks, Copyrights, and Patents

Since 1970, the federal government has maintained a strict prohibition on cannabis, but in recent years, that prohibition has been bypassed by a growing number of states that have legalized medical and adult use marijuana. New Jersey is now poised to join the green revolution sweeping the nation. Learning from the successes and follies of California, Colorado, Washington State, Nevada, Oregon and others, New Jersey is aptly positioned to create, regulate, and tax a robust cannabis market.

As of June 2018, two New Jersey state Senate bills have been introduced by Senator Nicholas Scutari, S2702 and S2703. If passed, the legislation would allow consumers over the age of 21 to obtain and personally use up to one ounce of marijuana.

Continue Reading Beyond the Horizon: Proposed New Jersey Bills Pave Way for Legalizing Cannabis

The European Union (EU) has long recognized the importance of privacy as a human right. In 1980, the Organization for Economic Cooperation and Development (OECD) issued the “Recommendations of the Council Concerning Guidelines Governing the Protection of Privacy and Trans-Border Flows of Personal Data,” which laid out seven principles governing the OECD’s recommendations for protection of private personal data. These principles were then incorporated into the EU’s Data Protection Directive, which regulated the processing of personal data and was officially adopted in 1995. The principles included:

  • Notice: data subjects should be given notice when their data is being collected;
  • Purpose: data should only be used for the purpose stated and not for any other unstated purposes;
  • Consent: data should not be disclosed without the data subject’s consent;
  • Security: collected data should be kept secure from any potential abuses;
  • Disclosure: data subjects should be informed as to who is collecting their data;
  • Access: data subjects should be allowed to access their data and make corrections to any inaccurate data; and,
  • Accountability: data subjects should have a method available to them to hold data collectors accountable for not following the above principles.

Continue Reading What is GDPR and Why You Should Care?

As you may have read in our last article, a color or a color scheme can sometimes fall under a company’s trademark if they can prove its distinctiveness. However, what isn’t enough to meet the trademark threshold?

General Mills sought registration of the predominant, yellow color of its well-known Cheerios boxes by attempting to prove the sunny yellow alone was distinctive to their brand. They argued that under Section 2(f) of the Lanham Act, the color yellow had acquired distinctiveness because consumers have come to identify the color yellow, when used in connection with toroidal, oat-based breakfast cereal, as coming specifically from the Cheerios brand, as evidenced through consumer surveys and expert reports. The United States Patent & Trademark Office (USPTO), however, refused registration of the color mark on the grounds that the General Mills had failed to demonstrate acquired distinctiveness.

Continue Reading Trademark Registration of Colors—Stay Mellow, Yellow

The average consumer has probably heard of terms like “trademark” and “copyright” before, but what falls under trademark? Do colors or color schemes fall under the category of a trademark? The answer may surprise you.

Trademarks and service marks are “any word, name, symbol, or device, or of any combination thereof” that identify and distinguish a mark owner’s goods or services from those manufactured or sold by others. They act as source indicators of the goods or services provided by the mark owner. See 15 U.S.C. § 1127. Dilution occurs when an infringer uses a mark similar to that of a famous trademark, thereby lessening or reducing a consumer’s ability to differentiate between the goods and services of each.

Continue Reading Trademark Registration of Colors—Only Once in a Blue Moon

A federal court in California agreed to remove the two songwriters of the Disney animated film Frozen from a copyright infringement lawsuit, for now. The lawsuit claims that the hit song “Let It Go” was copied from a Chilean song called “Volar,” and that the two songs are so strikingly similar that Disney could not claim its song was independently created.

The plaintiff, Jamie Ciero, originally filed the lawsuit in November 2017 wherein he alleged that the songwriters, Bobby Lopez and Kristen Anderson-Lopez, copied “quantitatively and qualitatively distinct, important, and recognizable portions of his song.” This included note combinations, hooks, and melodies that are, according to Ciero, almost identical to those in his song.

Continue Reading <i>Frozen</i> Songwriters Removed from Copyright Infringement Lawsuit

How long does a copyright owner have to bring suit for copyright infringement? The answer is three years from the date of the last infringement, regardless of when the very first infringement occurred. Copyright law follows the “separate-accrual rule,” which provides for a new three-year statute of limitations each time an infringement occurs. While the three-year look back period allows copyright owners to maintain actions years or decades after the initial infringement occurs (assuming subsequent infringements), the copyright holder would only be entitled to damages for that three-year period, rather than the entire period of time the infringing activity had occurred.

Continue Reading Delay in Bringing Suit Is No Bar to Copyright Infringement Claims