The newly released Examination Guide for trademark examiners at the US Patent and Trademark Office (“USPTO”) entitled “Examination of Marks for Cannabis and Cannabis-Related Goods and Services after Enactment of the 2018 Farm Bill” clarifies that applications for hemp and hemp derived products, including CBD, filed after Dec. 20, 2018 as either intent-to-use or having a first use date on or after Dec. 20, 2018 will generally be eligible for trademark registration. Applications for marks for foods, beverages, dietary supplements, or pet treats containing CBD will still be refused as unlawful under the Federal Food Drug and Cosmetic Act, even if derived from hemp, as such goods may not be introduced lawfully into interstate commerce. The Guide additionally states that the USPTO will be requiring the description of goods explicitly to state “containing less than 0.3% THC on a dry-weight basis.” Regarding hemp and hemp-derived product applications filed prior to Dec. 20, 2018, the USPTO will be giving these applicants the opportunity to amend their filing and first use dates to after Dec. 20, 2018.
For applications that recite services involving the cultivation or production of hemp, the examining attorney will also issue inquiries concerning the applicant’s authorization to produce hemp. Applicants will be required to provide additional statements for the record to confirm that their activities meet the requirements of the 2018 Farm Bill with respect to the production of hemp. The 2018 Farm Bill requires hemp to be produced under license or authorization by a state, territory, or tribal government in accordance with a plan approved by the U.S. Department of Agriculture (“USDA”) for the commercial production of hemp. To date, the USDA has not promulgated regulations, created its own hemp-production plan, or approved any state or tribal hemp-production plans. However, the 2018 Farm Bill directs that states, tribes, and institutions of higher education may continue operating under authorities of the 2014 Farm Bill until 12 months after the USDA establishes the plan and regulations required under the 2018 Farm Bill.