Though it has said it is working to develop regulations to add cannabidiol (CBD) to the food supply, the Federal Drug Administration is dragging its feet making those rules, which is creating problems for businesses in the CBD industry.
The most recent example: Joy Tea, which makes CBD tea products, filed a trademark application based on the fact that hemp-derived cannabidiol is legal and there is federal legislation pending that could further change its status; the U.S. Patent and Trademark Office (USPTO) disagreed and denied the request, a ruling that was recently upheld by the Trademark Trial and Appeal Board (TTAB), which said cannabidiol remains illicit to sell as a beverage under the Food, Drug, and Cosmetic Act because the FDA still hasn’t issued rules allowing it.
The trademark appeal board said the “issue in this appeal is narrow and simple: whether an applicant for a federal trademark registration can have a bona fide intent to use its mark in commerce on goods that are currently prohibited under federal law but that may, perhaps, become lawful in the future.”
The ruling leaves companies in the CBD industry in trademark limbo.The author writes
Federal law allows companies to apply for trademarks for their products, based either on current usage or future intent. This led to one of the main arguments offered by Joy Tea: companies in the pharmaceutical industry are allowed to apply for trademarks for drugs not yet accepted by the FDA.
The appeal board countered by noting that pharmaceutical goods pending FDA approval are merely unapproved, but not unlawful. But a CBD-infused beverage, it argued, is unlawful without FDA approval.
Joy Tea has two months to appeal in federal court, and its lawyer Larry Sandell said the company intends to do that. If the court decides in favor of Joy Tea, it could have wide-ranging implications for emerging industries surrounding potentially soon-to-be-legal substances like psychedelics, and would mean companies could be able to trademark products that aren’t legal under federal law. The mind boggles at the possibilities.
This piece was originally published by Marijuana Moment and has been edited or modified by The News Station.