This month, the USPTO issued a new examination guide titled “Examination of Marks for Cannabis and Cannabis-Related Goods and Services after Enactment of the 2018 Farm Bill.” In light of the passage of the 2018 farm bill, the USPTO will now consider registering trademarks for some hemp-based goods and services. According to the USPTO, marks can be registered as long as the product is not regulated by the U.S. Food and Drug Administration and doesn’t fall under the federal definition of marijuana. The guide breaks down which cannabis and cannabis-derived products will be eligible for protection based on their “lawful use.” The lawful use requirement, as explained by the USPTO, mandates that “use of a mark in commerce must be lawful use to be the basis for federal registration of the mark.” TMEP §907, citing to 37 C.F.R. §2.69 and §§1, 45 of the Lanham Act. In other words, if a product cannot be legally sold in interstate commerce then, according to the USPTO, the mark cannot be used legally in interstate commerce and, lacking trademark use, the trademark cannot be registered. The USPTO stated that for applications filed on or after December 20, 2018 that identify goods encompassing cannabis or CBD, the 2018 Farm Bill potentially removes the CSA as a ground for refusal of registration, but only if the goods are derived from “hemp.” Cannabis and CBD derived from marijuana (i.e., Cannabis sativa L. with more than 0.3% THC on a dry-weight basis) still violate federal law, and…

TTB accepted an offer in compromise from Crown Imports in the amount of $420,000. TTB alleges that Crown violated 27 USC 205(b) by entering into “agreements or understandings with retailers, directly or indirectly through (1) an ostensibly independent third-party, or (2) an affiliate of the retailer.” In particular, Crown allegedly paid a third-party resulting in a retailer receiving payment for advertising, display, and distribution services. TTB alleges that the payments, in part, secured tap handles for Crown malt beverages and amount to a slotting allowance.  

Post 2018 Farm Bill, TTB Addresses Hemp Ingredients in Alcohol Beverage Formulas Recently, the TTB added to its on its 2018 guidance regarding hemp derivatives (THC and CBD) in light of the Farm Bill from 2018 which excluded “hemp” from the definition of marijuana under the Controlled Substances Act. Since the 2018 Farm Bill excluded “hemp” from the definition of marijuana under the Controlled Substances Act (CSA), TTB has received many inquiries from industry members about whether they may produce alcohol beverages containing ingredients, such as cannabidiol (CBD), derived from “hemp.”  TTB is in the process of updating its guidance on the use of ingredients from hemp to reflect the recent changes to the law.   In the interim, it remains TTB’s policy that it will not approve any formulas for alcohol beverages that contain ingredients that are controlled substances under the CSA.  Even if an ingredient derived from cannabis is not a controlled substance because it meets the new definition of “hemp,” TTB will continue to consult with the FDA to determine if the use of hemp ingredients would violate the Federal Food, Drug, and Cosmetic Act (FD&C Act).    The update goes on to let industry members know that the TTB will return applications for formulas containing hemp ingredients other than those derived from hemp seeds or hemp seed oil. And that applicants for other derivatives will have the option to resubmit upon favorable approval (individual determination) from the FDA of their ingredients.  TTB will continue to process…