After the Patent and Trademark Office’s (PTO) youthful experimentation with allowing trademark registrations for “processed plant matter for medicinal purposes, namely medical marijuana” in 2010, the Trademark Trial and Appeal Board (TTAB) has now made it clear that neither it nor the PTO is going to allow registration of cannabis-related trade or service marks, at least if the product or service may violate the federal Controlled Substances Act (CSA). In last week’s precedential decision of In re JJ206, LLC, dba JuJu Joints, the TTAB upheld the PTO’s decision to deny the applicant’s intent-to-use trademark application because the applicant admitted that the products at issue were “vaporizing devices for cannabis or marijuana,” which remain illegal under the CSA regardless of whether those devices are legal under individual state’s laws.
It is undoubtedly no coincidence that the TTAB issued this precedential decision two weeks before five states (Arizona, California, Maine, Massachusetts, and Nevada) vote on whether to join Washington, Colorado, Oregon, and Alaska in legalizing cannabis for recreational use under state law. While courts have been receptive to invalidating similar TTAB decisions denying registration to “disparaging, scandalous, and immoral” trademarks, it is less likely that federal courts are going to find a First Amendment right to engage in commerce that has been declared illegal by Congress. So for now at least, there will be no federal trademark registrations for products or services associated with state-sanctioned cannabis businesses if those products or services may violate the federal Controlled Substances Act.