The USPTO issued a Guideline on May 2, 2019 regarding its review of trademark applications for cannabis, CBD and hemp-derived goods following the 2018 Farm Bill passed last year.

For background, the USPTO will not grant a federal registration for the production or sale of goods that violates federal law (even if lawful within a particular state) because use of a trademark must be “lawful” under federal law to qualify for federal registration. However, marks generally can be registered if the services are educational and/or comply with the Controlled Substances Act (CSA).

Following the 2018 Farm Bill, hemp and hemp-derived goods (e.g., CBD) — as now defined — are no longer considered controlled substances. Specifically, the 2018 Farm Bill removes “hemp” from the definition of “marijuana” under the CSA and defines hemp as the cannabis plant (and any part thereof) containing no more than 0.3% THC on a dry-weight basis.

This means that the USPTO will allow registration for cannabis or CBD goods if the goods are derived from “hemp” (i.e., containing no more than 0.3% THC). This will apply to applications filed after December 20, 2018 (effective date of Farm Bill). If the application was filed earlier, the applicant can amend the filing date. An Examiner will also likely require a declaration that the goods are made with hemp licensed or authorized under USDA regulations and the 2018 Farm Bill for the commercial production of hemp.

Still, not all hemp-derived goods that are lawful under the CSA are currently lawful under FDA regulations (i.e., food, beverages, dietary supplements). Accordingly, registration of marks for food, beverages or dietary supplements containing cannabis or CBD (even if hemp-derived) will still be refused as unlawful.

The TTB also recently issued a guideline (TTB Industry Circular 2019-1) on alcohol beverages containing hemp ingredients.