On June 16, the US Trademark Trial and Appeals Board (TTAB) upheld an examiner’s rejection of PharmaCann LLC’s trademark registration applications for “Pharmacann” and “Pharmacannis,” for medical marijuana-related retail services that are lawful under Illinois state law (In re PharmaCann LLC, TTAB, No. 86520135, 6/16/17).
Currently, the USPTO refuses to register marks in connection with goods and services that are unlawful under the Controlled Substances Act (CSA), since registration requires lawful use of the mark, or a bona fide intent to lawfully use the mark, in commerce.
1. Since 2009, the Department of Justice (DOJ) has not treated medical marijuana as an illegal drug, since it has refused to enforce the CSA where medical marijuana is legal under state law.
2. Since 2015, Congress has passed versions of the Appropriations Act that include the Rohrabacher-Farr Amendment, which prohibits the DOJ from using its appropriations to prosecute medical marijuana uses that are lawful according to state law.
However, the TTAB disagreed, ruling that the DOJ’s treatment of medical marijuana is based only on their discretion, and does not change the answer to the question whether an act would be a violation of federal law. Similarly, the argument based on the Appropriations Act was unavailing. The TTAB relied on 9th Circuit precedent, which stated that the Appropriations Act did not make medical marijuana legal under the CSA. The 9th Circuit had also noted that “Congress could appropriate funds for such prosecutions tomorrow,” and “the federal government can prosecute [violations of the CSA] for up to five years after they occur.” Finally, since the Supremacy Clause of the US Constitution makes federal law supreme over state law, as long as the CSA remains in effect and is not repealed, even medical marijuana-related goods and services that are lawful under state law remain prohibited by federal law.
It appears that the only way that this situation will change will be for Congress to reclassify marijuana from a Schedule I controlled substance to some other status where its sale would be lawful under federal law. Because the Rohrabacher-Farr Amendment to the Appropriations Act was passed in 2015 and subsequently renewed in 2016 and 2017, it appears it may be possible to persuade Congress to do so.
© 2017 by Jeff Burgess, Intellectual Property Partner at Loza & Loza LLP