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60 IDEA 502 (2020)
Blunt Advice: A Crash Course in Cannabis Trademarks

handle is hein.journals/idea60 and id is 524 raw text is: 


                    IN CANNABIS TRADEMARKS

                                    JOHN GILBERTSON


       Cannabis  brands are going mainstream, and they
want  trademark protection. Getting it, however, is easier
said than done. Because cannabis is largely illegal at the
federal level, the United States Patent and Trademark
Office (USPTO)  will not bestow federal registration on
trademarks  used  in connection  with products  having
greater than 0.30 THC content-even  in states which have
legalized recreational cannabis use.   This presents a
problem  to cannabis brands, because federal registration
offers the broadest trademark protection. The effect is that
cannabis brands must  navigate a confusing patchwork of
state-level trademark laws to cobble together whatever
common-law  rights they can muster.

       There  are, however,  a number   of recent and
continuing developments  in the law, the knowledge  of
which will enable a savvy cannabis company to maximize
its brand protection in the face of an uncertain landscape.
For  example,  the Supreme  Court  has demonstrated  a
marked  willingness over the past few decades to curtail
government  restrictions on commercial  speech.   This
includes two recent decisions, Matal v. Tam and lancu v.
Brunetti, in which the Court struck down two substantial
Lanham  Act provisions-the disparagement clause and the
immoral/scandalous   bar  as   unconstitutional speech

* J.D., Drake University Law School, 2020; B.A., Berklee College of
Music, 2007.

60 IDEA 502 (2020)

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