In Brief: No federal protection for trademarks related to ingesting a banned substance.
Here’s What Happened:
National Concessions Group (NCG) filed two trademark applications to protect its brand name “Bakked” in connection with a product identified as “an essential oil dispenser, sold empty, for domestic use.
The astute Examining Attorney refused registration of the Bakked trademarks on the basis that the product was illegible drug paraphernalia because it was designed for “dabbing”. Dabbing is the action or practice of inhaling small quantities of a concentrated and vaporized drug, typically cannabis oil or resin.
NCG appealed to the Trademark Trial and Appeal Board.
The Board first looked at the legal definition of drug paraphernalia which is “equipment or products primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana into the human body (e.g., water pipes, roach clips and bongs) constitute unlawful drug paraphernalia under Section 863(d) of the Controlled Substances Act (CSA). Then the Board looked to extrinsic evidence. NCG issued a press release advertising itself as “the Largest Cannabis Company in the US”. The Board found news articles describing “dabbing” as a new way to get high through oil dispensers.
NCG argued that the CSA exempts “any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items.” Since NCG can sell its product in the State of Colorado, NCG argued that its trademark can be registered at the federal level. The Board rejected this argument. The Board determined that the exemption doesn’t support a federal registration due to the federal ban on controlled substances and their paraphernalia.
The refusal to register the Bakked trademarks was affirmed.
Why You Should Know This: For the time being, cannabis trademarks are not available for federal trademark registration. However, if a state has legalized the controlled substance, most state trademark registration system will accept a trademark application.
A note about press releases. Very often, an enterprise is eager to issue press releases to build the business and the brand. Checking with a trademark attorney before issuing the press release can avoid unforeseen consequences.
Case Information: In re Nat'l Concessions Grp., Inc., 2023 TTAB LEXIS 147 (Trademark Trial & App. Bd. May 3, 2023).