Laws and social attitudes regarding cannabis have changed dramatically in recent years. Medical and/or recreational cannabis use is now legal in some form in the vast majority of states (including medical use in Alabama). The cannabis industry also received a boost under the 2018 Farm Bill, which legalized cannabis and cannabis-derived products containing 0.3% or less THC (known as “hemp”). With an estimated market value of $14.9 billion in 2021, entrepreneurs in the legal cannabis industry are eagerly seeking IP protection for their products. But is such protection even possible? It’s complicated, as an Alabama intellectual property lawyer explains below.
There are few barriers to obtaining patent protection on cannabis-related inventions. Such protection may come in the form of utility patents (such as those covering methods of production of the plant or its related products) or plant patents (such as those covering new strains of the cannabis plant). This is because a patent is merely a right to exclude others from the invention claimed in it rather than the right to actually make, use, and sell the invention. The legality of the cultivation or sale of cannabis generally has no bearing on whether a particular cannabis product is eligible for patent protection. However, whether courts will be willing to enforce the rights of cannabis patent owners in patent litigation is unknown at this time.
Registering trademarks on cannabis-related products is significantly more difficult than obtaining patent protection on them. One of the key requirements to obtain a trademark registration from the United States Patent and Trademark Office is that the product or service the trademark covers must actively be in use in commerce. Sales of products that are not legal under federal law do not meet the use-in-commerce requirement. As such, trademark registration is generally available only for cannabis products containing 0.3% THC or less, in accordance with the 2018 Farm Bill.
Trade secret protection requires no application to an administrative agency or grant of rights from the federal government, making cannabis and cannabis-related products eligible for trade secret protection. The key requirement to demonstrate the existence of a trade secret is that the information in question confers a competitive advantage by virtue of being unknown by others. As such, trade secret protection is available for cannabis-related proprietary information (such as a secret blend) on the same basis as other proprietary business information. However, as with the enforceability of cannabis patents, it is unclear the extent to which courts will be willing to entertain cannabis-based trade secret misappropriation claims.
Contact an Alabama Intellectual Property Lawyer for More Information about Cannabis IP
The state of the law surrounding cannabis IP is evolving, which can leave cannabis entrepreneurs confused about the value and enforceability of their cannabis-related IP rights. For more information about cannabis IP, please contact an Alabama intellectual property lawyer at AdamsIP by calling 251-289-9787 or by using our online contact form.