As the United States approaches a possible federal reform on cannabis, the debate around intellectual property (IP) in the sector grows. For industry operators, navigating the murky waters of legal protection has been a long-standing challenge. The legalization or reclassification of the plant may bring both opportunities and new complexities.

“It is important for brands to think about how they position themselves for future changes in the law,” said Jabari Shaw, an attorney at the Vorys Cincinnati office, specializing in intellectual property, to MJBiz Daily.

Trademarks: a hurdle for cannabis

Currently, cannabis remains listed as a Class 1 substance by federal law, preventing the registration of national trademarks for products related to the plant. To work around this barrier, some companies register their brands in parallel segments, such as apparel.

This scenario forces operators to rely on state-level registrations, valid only within each territory. An example is the brand Cookies, which has a pending federal application for its smokable hemp.

Sun Theory, the manufacturer of Dialed In gummies, follows this strategy by registering trademarks in all states where it operates. However, the process is time-consuming and expensive. According to Matt Melander, the company's president, there is no magic solution, registration is necessary to ensure protection.

What is intellectual property in cannabis?

IP protection is essential in a sector that involves everything from cultivation techniques to product development and branding strategies. Among the main tools are:

Patents: safeguard innovations such as new varieties, cultivation methods, and manufacturing processes. Although cannabis products cannot be federally registered, plants can still be patented;

Trademarks: protect symbols, words, and expressions that identify a company. Currently, federal protection is limited to legal products, while cannabis brands resort to state laws or auxiliary registrations;

Trade secrets: ensure strategic information, such as recipes, techniques, and business processes, as long as they are kept confidential;

Copyrights: protect logos, packaging, digital materials, and written content. Unlike trademarks, they are not impacted by cannabis illegality at the federal level.

A potential turn with federal legalization

A change in legislation could open doors for national trademark protections, strengthening the value of cannabis companies.

“You can’t federally register anything related to cannabis. We had to open separate businesses for the CBD and apparel lines just to secure trademarks,” explained Corey Keller, founder of Bonanza Cannabis Co. in Colorado.

According to him, using hemp-derived products is a strategy to try to ensure federal protection. However, this solution requires the creation of independent entities, with their own operational structure — making the process expensive and complex.

Rescheduling doesn’t solve everything

Even with the possible reclassification of cannabis, challenges remain. The USPTO (United States Patent and Trademark Office) historically rejects applications that directly reference the plant.

“Legality still creates obstacles, and the USPTO identification manual does not contain specific descriptions for cannabis and hemp products,” highlighted attorney Mary Shapiro, a former representative of the operator Harborside.

She stated that the alternative was to prioritize the protection of the company's educational materials, rather than the main brand. “There are significant benefits to registering ancillary services, even if the sale of cannabis itself remains blocked”.

Content originally published on MJBizDaily