Since more than half of the states in the United States have decriminalized marijuana (those varieties of the Cannabis plant with intoxicating properties), the marijuana business is growing rapidly in this country. Like any business, companies selling marijuana and related products invest in branding and product development. A company’s brand and its innovative products can be protected by various forms of intellectual property protection, including trademark (for brands) and patents (for inventions). New breeds of plant can also be protected by patents and by plant variety certificates. Unfortunately, these traditional forms of intellectual property pose great difficulties when it comes to Cannabis. These arise from the conflict between the states and the federal government on the legality issue. In short, it is virtually impossible to protect trademarks in marijuana at the national level, although not impossible at the state or local level. While there are significant roadblocks to using plant variety certificates to protect marijuana, critics argue that it is too easy to obtain patents.
This article will summarize the difficulties and how the marijuana business can deal with them. It should be noted that this article does not address non-intoxicating strains of Cannabis (those containing 0.3 percent or less of THC) that are grown for fiber; these strains, called “hemp” in modern parlance, are much less regulated than are the intoxicating strains referred to as “marijuana.”
The original article, "Cannabis Patents, Trademarks, and Other Forms of Intellectual Property Face Difficulties," first appeared in the July 2019 issue of Intellectual Property & Technology Law Journal.