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Can You Trademark Edibles? (Answers for the Cannabis Entrepreneur)

May 8, 2022

With the legalization of cannabis in 18 states (as well as Washington, D.C., and Guam), it’s no secret that cannabis is proving to be a 21st gold rush for brands eager to make their mark in the industry. With the relative newness of cannabis products entering the mainstream market, what legal safeguards exist for brands? Can you trademark edibles and other marijuana products? Brands are particularly driven to safeguard their name recognition—when a new product makes a splash, they want to be known for it.

CANNABIS ISN’T ELIGIBLE FOR TRADEMARKING

As of 2022, cannabis products cannot be trademarked (and protect their product name recognition) because trademarking happens on a federal level, and cannabis hasn’t been legalized yet across the country. It’s a conundrum brands face when developing new cannabis products. You want to innovate and produce products with a unique differentiating factor, but if your product’s name, logo or slogan can be imitated, how can you preserve your brand’s integrity?

The question grows more pressing when you look at the funding pouring into the industry, generating massive growth. According to Crunchbase, over 280 companies have received seed funding, and more are progressing into later stages. Dutchie, a major cannabis retailer, is now in series D, with an evaluation of $3.75 billion. In 2021, financing for cannabis brands intensified at such a rapid rate, the market saw an increase of 86% from 2020. The demand and drive are there, so what legal protection are these brands offered?

HOW CAN CANNABIS BRANDS SEEK LEGAL PROTECTION?

The answer to this dilemma lies in thinking creatively—and taking as many legal steps as possible to preserve a brand’s integrity. Many brands that produce cannabis products trademark their brand’s name, logo, and slogan around merchandise and accessories, not the actual cannabis product or strain itself. This allows for protection of the brand’s reputation across all products outside of anything actually cannabis, but unfortunately, it doesn’t give a brand recourse if their product or strain is copied by another company.

LOOKING TO THE FUTURE

Brands that trademark their name, logo, and slogan are playing the game right. Trademarking any related merchandise or accessories will also serve the brand’s reputation and offer a stronger foothold against duplicates. If cannabis becomes legal on a federal level, it’ll give brands an entirely new foothold to safeguard their intellectual property.

*This post is for general education and does not initiate an attorney-client relationship with us. We always recommend consulting a trademark attorney for your brand’s specific needs.*

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