May 8, 20233
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In a first-of-its-kind decision, the Trademark Trial and Appeal Board has upheld the Controlled Substances Act in a cannabis trademark case, despite state-level legalization.
According to Law360, the ruling came in response to a trademark application submitted by the National Concessions Group, a Denver-based subsidiary of Canadian cannabis consumer goods company SLANG Worldwide (OTCQB: SLGWF).
National Concessions pursued a trademark to protect the brand name “Bakked” for selling what the firm characterizes in its application as an “essential oil dispenser, sold empty, for domestic use.” However, the TTAB unanimously agreed with the examining attorney’s contention that the product is illegal drug paraphernalia, as it is primarily intended for “dabbing” cannabis-based oils.
In her precedential decision, Administrative Trademark Judge Cindy Greenbaum stated that Colorado’s state laws legalizing marijuana would not affect federal law or laws in other states. She noted that the federal trademark registration the applicant sought would be nationwide in effect, further complicating the matter.
The application’s rejection also stemmed from a press release by National Concessions, which advertised its products as being from the largest cannabis company in the country. That led the panel of trademark board judges to agree with the examiner’s argument, supported by news clippings used as evidence such as “The Official Dab Dictionary” and “Dabbing is Becoming a New Way to get High.”
Greenbaum also clarified that the application differed from registrations granted to products like tobacco jars, grinders, rolling paper, or e-cigarettes, which may also be used with cannabis products but are not unlawful under the CSA.
Pamela Hirschman, the National Concessions lawyer, expressed frustration over the decision, citing the legality of cannabis in the majority of states. She argued that there should be a way to protect both consumers and companies from infringement. The client has not yet decided whether to appeal the decision to a federal appeals court.
“At this point and time, the trademark office is very hesitant to allow registrations for goods that could be considered covering goods that could be considered drug paraphernalia,” she added.