Although cannabis is still illegal at a federal level, a majority of states in the U.S have now legalized it for either recreational or medical use. Illegality of cannabis being illegal has not stopped the United States Patent and Trademark Office (“USPTO”) from issuing patents on related to the plant, as the USPTO has been issuing cannabis-related patents since 1942. Nevertheless, research shows that as a result of the dichotomy between the Drug Enforcement Administration (“DEA”) and the USPTO, inventors may be timid when it comes to applying for patent protection when cannabis is involved.
In a previous post I discussed the ‘in use’ aspect related to a federal trademark registration, and how this ‘use’ has a relationship to actual ‘use in commerce’. But what if you don’t have (or don’t want to get) a federal registration - can a you still obtain rights?
Luckily the answer is ‘yes’! The acquisition of federal trademark rights under the Lanham Act (at least here in Texas, and more aptly the 5th Circuit) is established by use, not by registration. The State of Texas has a similar provision (“Trademark" means a word, name, symbol, or device, or any combination of those terms, used by a person to…”).
So just what are the benefits of going through the rigor of obtaining a Registration?