The Elephant in the Room
By Patrick L. Myers
Intellectual property within the cannabis industry is rarely talked about and almost never considered when a new entrepreneur is starting up a business. Trademark protection is considered one of the most difficult aspects of the business and, after a business gets through the registration phase, they’re not necessarily prepared for more of the same type of struggle; this is why most up-starting businesses overlook or are not prepared for this aspect of the business.
Not all trademarks must be registered. A business can establish common law rights in a mark based on use of the mark in commerce. There are advantages to federally registering a trademark, patent or copyright with the United States Patent and Trademark Office (USPTO), including notice to the public of a registrant's claim of ownership of a certain mark.
Part of the difficulty in enforcing a trademark in the cannabis industry is that it requires constant monitoring to ensure that others are not infringing on the trademark, and a business within this industry cannot necessarily register with the USPTO due to conflicts with federal entities.
A trademark, by definition, is a word, symbol or design that distinguishes the source of income of your business from others. It’s important to know that trademarks can last forever; they inherently do not expire after a set term of years. The bottom line is that trademarks are gained by either registration or usage of the mark—get your brand developed and start using it before somebody else does.
Another form of intellectual property protection that an entrepreneur should know about is the patent. This type of property is already being clamped down on in labs of different sorts in the cannabis industry, whether it be testing or extraction. A patent is a limited duration property right relating to an invention—meaning machines, manufactured articles, industrial processes and chemical compositions. This form of property may potentially help a business to at least make money from newly-discovered methods of growing or extracting, for example.
The other type of intellectual property protection to be aware of is copyright, which covers property in relation to literature, music, drama, art, but is mostly used in regular business for things like computer software and architecture. This is probably the least important type of intellectual property for the cannabis industry entrepreneur, yet it may still be relevant depending on your niche. The few key measures that a marijuana entrepreneur can focus on are utility patents, plant patents, breeder’s rights and trade secrets.
One may laugh at name-brand cannabis, but as all of the strains have been bred and taken on new names from their cultivar (raise your hand if you’re guilty), people are starting to want to own their name as it identifies certain characteristics of one type of flower, for example.
As names have been popularized—from Acapulco Gold to Skunk to Big Bud and all of the thousands of varied strains that exist today—naming and branding these products has been helpful in other aspects of business, such as to visualize regional tastes. The first marijuana patent was granted by the Netherlands in 1996, and the most recent known attempt is GG Strains’ attempt to patent the wildly popular Gorilla Glue #4 strain.
Anything innovation related must be acted on now as opposed to later. Ultimately, the sooner you begin trying to protect your intellectual property, the more chance you have of one of your marks becoming your own. The days of the “wild west” style recreational cannabis industry are over, as we transition a product from a black market setting into a legitimate business setting with the help of branding.