Trademarks and CBD

CBD has become very popular in recent years. In 2018 the Federal government removed hemp and hemp products from being a Schedule I drug. However, the Farm Bill did not legalize or allow for the use of CBD as a dietary supplement. Prior to the Farm Bill of 2018, the Trademark Office had been rejecting all CBD trademark applications as being unlawful as a Schedule I drug. Following the 2018 Farm Bill the rejection of CBD trademark applications stopped. However, the Trademark Office began issuing rejections of all orally ingested CBD trademark applications, including for dietary supplements, as being illegal under the Federal Food, Drug, and Cosmetic Act.

The Federal Food Drug and Cosmetic Act (FDCA) prohibits the introduction r delivery for introduction into interstate commerce of a food to which has been added a drug approved under the FDCA or a biological product that may qualify as a drug.

The Trademark Office now rejects trademark applications for oral CBD supplements and food as using a drug because a drug company received approval of a CBD containing drug (namely Epidiolex).

In June of 2020 the Trademark Trial and Appeal Board ruled that these rejections were valid trademark rejections. However, there is hope. Several bills to allow CBD as a supplement under the FDCA have been proposed in Congress. Further, the Trademark Trial and Appeal Board left the door open for an appeal having further proof that CDB was used as an oral supplement prior to Epidiolex.

The trademark attorneys at Shaver and Swanson continue to monitor this rapidly evolving trademark field. Please do not hesitate to contact us to discuss potentially moving forward with CBD or other herbal supplement trademark applications.