Bradley attorney Richard Swor was quoted in Bloomberg Law on a recent Ninth Circuit decision affirming that delta-8 THC found in e-cigarettes and vape products is legal and therefore eligible for trademark protection. The ruling could open a new frontier for cannabis sellers hoping to protect their brands, though any sea change in trademark application grants could remain a long way off.
The ruling comes before the PTO has issued any final decisions on requests to trademark delta-8 brands, explained Swor.
As of last year, Swor noted, about 40 trademark applications had been filed with the PTO that explicitly mention delta-8 products. A Bloomberg Law search found that number has risen to 57 in 2022. Although a handful of the applications have been abandoned or preliminarily rejected on the grounds that the underlying product is illegal, the vast majority are still pending.
The rejected trademark applicants still have a chance to respond to the PTO’s determination. The Ninth Circuit ruling, which found the farm bill’s definition of legal cannabis trumps the US Drug Enforcement Agency’s more stringent definition — which considers delta-8 illegal — could be another arrow in their quiver, Swor said.
If the PTO shifts from the DEA’s classification of delta-8 as an illegal substance based on its manufacturing method to the Ninth Circuit’s interpretation, “it will be a big shift” likely resulting in a flurry of trademark approvals, Swor said.
The complete article, “Delta-8 THC Trademarks Future Hazy After Nine Circuit Ruling (1),” was published May 26, 2022.