Cannabis is slated to be rescheduled by the U.S. Drug Enforcement Agency, from a Schedule I substance to a Schedule III substance. This upcoming shift has been discussed in a variety of contexts, but this author has not found a discussion of the impact that this rescheduling will have on obtaining a federal trademark registration. This article will explore the framework of how cannabis companies are currently filing for trademarks, how the Controlled Substances Act fits into the framework, and then will assess the impact that the upcoming rescheduling will have on this framework.
Generally speaking, obtaining a trademark registration for your cannabis business has never been a straightforward process. One of the largest contributing factors to this is the requirement that an applicant’s use in commerce be “lawful” use according to federal law. Gray v. Daffy Dan’s Bargaintown, 823 F.2d 522, 526, 3 USPQ.2d 1306, 1308 (Fed. Cir. 1987); 15 U.S.C. Section1051, 1127. However, as you are likely aware, it is a violation of the federal Controlled Substances Act (CSA) to manufacture, distribute, or dispense cannabis. 21 U.S.C. Section 841. The federal illegality of these activities, which many cannabis companies actively engage in, is something that must be traversed during the trademark application drafting process.
