In two recent decisions, the Trademark Trial and Appeal Board (TTAB) made it very clear that trying to register a mark for edible substances containing CBD would likely be a futile exercise.
at About Harbor Hemp LLCand SNs 88377702 and 88377730 (TTAB January 27, 2022) [not precedential] And the About AgrotecHemp Corp.SN88979905 (TTAB 10 Feb 2022) [not precedential]the TTAB has uniformly considered that the applicants in those cases did not have the bona fide of using their marks in trade for such goods.
The issue in both cases was “whether an applicant for a federal trademark registration could have the bona fide intention of using his mark in trade on goods that are currently prohibited by federal law but that may, most likely, become legal in the future.” hemp port at 3 o’clock, agrotech Hour 2. Both cases were appeals for refusal to register the marks because the applicants did not have a bona fide use of the marks for their nutritional supplements in interstate commerce because these goods do not comply with the Federal Food, Drug, and Cosmetic Act (FDCA) 21 USC Sections 321(g) (1), 331 (d) and 355 (a). hemp port at 3 o’clock, agrotech in 2.
In both cases, applicants specified their goods to make them appear legal: in hemp portthe merchandise contained the restricted phrase “All of the above contain legally produced synthetic hemp extract” (which TTAB determined could contain CBD, hemp port in 6) and in agrotechthe restricting statement was “All of the above contain CBD derived only from hemp containing not more than 0.3% THC on a dry weight basis.” ID. in 1.
Judge Thomas Shaw, writing for TTAB in both cases (with identical analyzes), first discussed how an applicant must have had a bona fide intention to use a mark in commerce under Section 1(b) of the Trademark Act, 15 USC Section 1051 (b). ), and how “trade” means “all commerce which commerce may lawfully regulate”. hemp port in 4, agrotech In 2. Next discuss how under the FDCA “any product (other than a food) intended to affect the structure or function of the human or animal body, is a drug,” hemp port in 5 agrotech In 3, how CBD is an active ingredient in Epidiolex®, an FDA-approved drug that has had “significant clinical investigations” conducted “before it is marketed in foods and dietary supplements.” ID.
The fact that the hemp port Applicant’s dietary supplement can be “derived from “legally produced synthetic hemp extract” ID. At 7 o’clock, the fact that agrotech Applicant’s dietary supplements may be “derived from ‘hulled hemp seed, hemp seed protein, and hemp seed oil’ which are generally considered safe” ID. At 4, she was not convincing. Because applicants in both cases did not have new drug applications or abbreviated new drug applications, they could not legally bring their goods into interstate commerce as of their application dates. ID.
Thus, the refusal to register was upheld because the applicants did not have the bona fide to use their marks in trade for their goods when submitting their applications. hemp port at 8 agrotech in 5.
The narrow takeaway doesn’t waste time and money on federal brand applications for ingestibles containing CBD unless approved by the FDA, and the broad takeaway is making sure that goods and services in applications comply with federal law When submitted to it has registrable marks.