Stanley Brothers Social Enterprises, LLC is a decision from the Trademark Trial and Appeal Board (TTAB) regarding the smoke surrounding trademark registration of cannabis products. In many ways, Stanley Brothers was a victim of its own success in promoting CBD, and Charlotte’s Web in particular, as a treatment for childhood epilepsy, because its promotion of CBD as a treatment belatedly prompted federal research — and as noted above, FDCA won’t approve something that is the subject of ongoing research.
One of the non-psychoactive constituents of cannabis is CBD — distinct from THC, and reportedly high in restorative qualities. In fact, CBD has been recently approved to control seizures in some epileptic children by the FDA — officially transforming itself from a folk remedy into a prescription-only member of the U.S. Pharmacopeia.
Stanley Brothers is a cannabis-growing agricultural company that was able, through genetic engineering, to produce a cannabis plant that was high in CBD and low in THC — in fact, much of the buzz surrounding the use of CBD in childhood epilepsy came about as a result of Stanley Brothers’ effort to help one such child with epilepsy named Charlotte, which resulted in the strain of cannabis known as Charlotte’s Web. Charlotte’s Web is considered a success story of early legalization in Colorado, and enjoys a state trademark registration. But when Stanley Brothers attempted to obtain a federal registration for the mark “CW,” the USPTO declined.
As it turns out, a slew of federal laws and regulations isolates the entire cannabis sector, including:
- The Farm Bills of 2014 and 2018: Define hemp as having no more than 0.3% THC by dry weight, and make hemp “legal” but:
- The Controlled Substances Act (CSA): Outlaws marijuana; and
- The Food, Drug, and Cosmetics Act (FDCA): Regulates the ingredients in food and cosmetics.
Even though the agricultural bills took hemp, and effectively CBD, off of the controlled substances list, the FDCA was unflinching and requires copious testing and approval of anything that is intended to be ingested.
The USPTO examining attorney (and in this decision, the TTAB) noted that an FDCA provision states that a substance which is currently under public investigation cannot be added to food, drugs, or cosmetics. Unfortunately, when Stanley Brothers’ application was submitted in 2018, CBD was already being researched in governmental (as well as private) laboratories.
Stanley Brothers countered that CBD-containing products had been sold in a variety of forms for many years, and that all this research came late in the game — and therefore CBD should be exempt from the research clause of the FDCA, pursuant to another provision of that statute. However, the only evidence offered in support of the duration of products available before testing was a lone press release from an industry trade group, the Hemp Industries Association. Stanley Brothers also asserted that (1) its product did not fall within the FDCA definition of food, because it was a dietary supplement; and (2) that the 2014 and 2018 Farm Bills, by legalizing hemp, exempted CBD from the FDCA.
The TTAB was not impressed with any of these arguments, noting that an industry group’s press release proves nothing, a dietary supplement is food for all intents and purposes, and the Farm Bills do not preempt the FDCA, even if the CBD is derived from legal, industrial hemp — respectively.
In many ways, Stanley Brothers is a victim of its own success in promoting CBD, and Charlotte’s Web in particular, as a treatment for childhood epilepsy — because its promotion of CBD as a treatment belatedly prompted federal research, and as noted above, FDCA won’t approve something that is the subject of ongoing research.
The company will have to follow the same path as other cannabis businesses and cover itself with a patchwork of state trademarks to protect its brand.
Although I’m sure the TTAB occasionally takes a while to reach a decision, it seems to me the Board took an unusually long time to decide this case. I don’t know if there was a change in policy, or perhaps the TTAB was waiting to see if federal legalization would happen and engaged in an “aspirational” delay.
Even if Stanley Brothers had succeeded in getting protection for its CBD brand, that would not have improved the trademark registrability of products “stronger” than hemp. It seems impossible for anyone/everyone selling in respective state-based legal cannabis markets to satisfy an essential element: Federal trademark registration requires proof of engaging in interstate commerce, and cannabis (with more than 0.3% THC by weight) is banned federally. Until pot can legally travel interstate, its brands can’t be protected.
