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Want to start a cannabis business in New York? To help prepare you, the VS New York team created VS Insights, an eight-part guide to help you navigate the path to applying for a New York cannabis business license. The series covers important topics for New York cannabis entrepreneurs, such as starting your business, preparing for license applications, finding suitable real estate, fundraising and investing, qualifying as a social equity applicant, dealing with municipal officials and local requirements.
Part four of the series will focus on one of the more fun but important tasks: creating your brand name and logo, and then protecting the trademark.
Brand names and logos are critical to business growth and success in the cannabis industry; Without a brand attached, consumers cannot buy, share or respect it. Effective brands must be created, built, supported and maintained. As discussed below, cannabis brands can build and protect brands and trademarks just like any other business.
The key to building and protecting a legally strong brand is choosing a creative name. The more unique, the better. A brand that is generic or made up of common industry terms can often be very difficult to protect – and the risk of conflict with another brand in the industry is high. As a result, it is recommended to work with a lawyer to conduct a review and screening search before taking a new brand name.
Once a name is chosen, trademark registration can be extremely useful as a property of the cannabis brand and to protect against infringers. While there are few barriers to obtaining federal trademark registration for cannabis brands—mainly due to federal regulations—there are still options available.
Trademarks can generally be registered at both the federal and state levels. Federal trademark registrations convey the strongest level of protection, giving the owner many rights:
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Ability to use the ® registration mark
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Proof of brand ownership
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Inform the public about existing trademark rights
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Ability to sue in federal court
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Providing a basis for filing a trademark in other countries
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Stop importing infringing goods (by registering the mark with US Customs and Border Protection)
Federal trademarks are administered by the US Patent and Trademark Office and, once granted, grant nationwide rights. While federally registered marks provide broad protection, state trademark registrations provide protection only in the state in which it is applied for.
While it is currently impossible to obtain federal trademark protection for cannabis-related products or services, all hope is not lost. Currently, the best way to obtain federal protection for a cannabis brand is to apply for goods and services that do not require a CSA. Some examples include cannabis-related websites and merchandise (such as apparel and clothing).
We have worked with several cannabis businesses to secure strong rights to their brands amid the current legal landscape. Additionally, federal registration is generally available for hemp or CBD products that comply with the guidelines under the 2018 Farm Bill and, if applicable, FDA regulations.
For example, below is a list of some of the registered trademarks that VS has helped customers to secure.
A listing of licensed cannabis products and services in the field of product recommendations, user ratings, and reviews for website online business directories and commercial or advertising purposes.
Bluepeak plants Online retail store services featuring hemp and hemp-derived CBD products, all in the nature of non-medicinal and non-consumable health products and beauty products. All of the above have a delta-9 tetrahydrocannabinol (THC) concentration of no more than 0.3 percent on a dry weight basis.
For a website that provides articles in the field of cannabis and CBD
To provide medical information about cannabis and CBD
B\ well A website with consumer information and news about cannabis
Sleep CBN To provide the website with medical and health information in the field of the benefits and harms of using cannabis and CBN
In states where cannabis use is legal, cannabis brands can register their trademarks with the state.
For more information on trademarks, common pitfalls, strategies for identifying your mark, and how to infringe registered marks, check out this conversation with VS Intellectual Property Attorneys Sahar Ainehsazian, Eric Pelton, and Jeffrey Welsh.
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