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…

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Patagonia, the outdoor clothing and gear company, filed a lawsuit against Anheuser-Busch in U.S. District Court for the Central District of California claiming federal trademark infringement, unfair competition, dilution of a famous mark and cancellation of trademark registration. Anheuser-Busch recently adopted the business name “Patagonia Brewing Co.” and launched a marketing campaign for its new Patagonia beer, beginning at ski resorts in Colorado. Patagonia asserts that Anheuser-Busch has tried to take advantage of the outdoor clothing company’s 40-year-old brand and reputation as a company dedicated to environmental conservation and that Anheuser-Busch has created a logo “strikingly similar” to Patagonia’s own mountain silhouette logo. Patagonia asks that Anheuser-Busch be found to have infringed its marks and that it be stopped from continuing to make its Patagonia beer or using anything that infringes the clothing company’s marks. The company also asked to recover damages and lost profits, as well as punitive damages.

Posted in alcohol beverage law, craft beer, Lawsuits, Litigation, trademarks | Tagged AB, beer, Patagonia | Comments Off

Narrowing the international class for your alcohol beverage brand, products, or services for which you seek trademark protection is a rather straightforward decision; it comes down to either international class 32 for beer or international class 33 for all other wine and spirits. But what about the description of goods and services? In order to define the scope of your trademark rights, the USPTO requires that you provide a description, or “identification” of the goods and services that the mark will be used on or in connection with. Trademark examiners are not only comparing the similarity of marks, but how the marks are used on the same or similar goods and services within the same or similar channels of trade. Thus, the description is important because the USPTO will use it to decide whether there is a conflict between two marks, or whether the specific goods or services descriptions are different enough to distinguish the two marks and their varying uses. In general, the USPTO has taken the position that all alcoholic beverages are related, and relatedness of products is a major factor in determining whether two trademarks conflict. However, a proper description of goods and services can sometimes differentiate two alcohol beverage marks registered in the same international class. Many trademark applicants wish to obtain registration for goods and services in the broadest sense possible, with the hopes of securing the most protection for their mark. This technique may prove successful for applicants with a completely novel or fanciful mark in an…

Posted in alcohol beverage law, beer, Trade Practice, trademarks | Tagged Ashley, Trademark, uspto | Comments Off