In a recent precedential decision, In re Stanley Brothers Social Enterprises, LLC, the Trademark Trial & Appeal Board affirmed the refusal for the mark “CW” for use on “hemp oil extracts sold as an integral component of dietary and nutritional supplements” in International Class 5, finding such a sale of hemp products for dietary and nutritional supplements is unlawful in U.S. commerce.
Trademark rights are built on lawful use in United States commerce. While some hemp-derived products may be legally sold in U.S. commerce, products that are to be ingested or swallowed by humans or animals, to be deemed “lawful”, must be first evaluated by the Food & Drug Administration before releasing the products to the public. Here, though the Applicant has used the mark “CW” in connection with selling hemp-derived oil as dietary and nutritional supplements since 2015, because the supplements are swallowed by consumers and the products have not been approved by the FDA, this use was deemed “unlawful” as a per se violation of the Food, Drug, & Cosmetics Act, and therefore, not registerable as a federal trademark.
However, this decision does not bar registration of all hemp-based products. Non-ingested hemp-based products that are categorized in other International Classes, such as smokable loose hemp flower in Class 34 or topical hemp-based pain cream in Class 3, may be registerable with the U.S. Patent & Trademark Office, where the product has no more than .3% of THC on a dry weight basis. Indeed, the USPTO has issued several registrations for marks for use on those types of products.
This is an important decision in the evolving area of law regarding hemp-based and cbd products. Though the Applicant had been using the mark “CW” since 2015 as part of a dietary and nutritional supplement, registration for this mark was not permitted as the use is still considered not lawful under current federal statutes. This suggests that even for a business that has sold ingestible hemp-based products for many years in connection with a mark, at this point, an application to register that mark with respect to those products, such as dietary and nutritional supplements, will likely be refused. However, if the same business uses the mark in connection with lawful products as well, such as smokable loose hemp flower or hemp-based pain cream, the business may still obtain a federal trademark registration with respect to those products.