One such firm is Stanley Brothers Social Enterprises, LLC (“Stanley”), a Colorado-based firm that makes, amongst different issues, meals merchandise and dietary dietary supplements that comprise CBD. Relying on the 2018 Farm Bill’s provisions eradicating industrial hemp derivatives from the CSA, Stanley sought to register a trademark for its CBD merchandise, bought as meals dietary supplements.
The United States Patent and Trademark Office rejected the appliance, deeming the CBD merchandise “unlawful” underneath each the CSA and the Food Drug and Cosmetics Act (“FDCA”). Although Stanley appealed, a unanimous panel of three Administrative Trademark Judges sitting on the Trademark Trial and Appeal Board just lately affirmed that rejection, creating market confusion and uncertainty given the 2014 and 2018 Farm Bills, which many observers considered having successfully legalized the sale of merchandise containing CBD.
Notably, the Board defined its ruling with out passing on the referenced Farm Bills’ impression on the legality of CBD merchandise by amending the CSA, besides by the use of a dialogue of the case background. The Board expressed its opinion that Stanley’s use of CBD in meals merchandise—tinctures of which droplets are supposed to be added to meals or drinks—rendered these items topic to the FDCA. The Board particularly famous that the FDCA prohibits “[t]he introduction or delivery for introduction into interstate commerce of any food to which has been added . . . a drug or a biological product for which substantial clinical investigations have been instituted and for which the existence of such investigations has been made public.” 21 U.S.C. § 331(ll). No different reported case depends on this provision.
The lesson right here is that though the sale of CBD derived from industrial hemp is not criminalized underneath the CSA (as long as it complies with the provisions of the 2014 and 2018 farm payments concerning its cultivation), the TTAB at the very least regards any meals product containing CBD to stay illegal and subsequently not topic to the branding protections afforded by a federal trademark. Aside from mustering additional challenges to this interpretation of the FDCA, a superb trademark technique ought to take into account advertising of CBD merchandise that don’t invoke use in meals or different FDCA prohibitions. Perhaps if Stanley had sought to guard a CBD-only product (versus dietary dietary supplements infused with CBD), it might effectively have obtained a registration. Although the safety wouldn’t be as sturdy as that sought by Stanley, a CBD-only registration would nonetheless present safety in opposition to third events making an attempt to make use of a confusingly related title within the CBD area.
The case is In re: Stanley Brothers Social Enterprises LLC, Case No. 86568478 (TTAB 2020).