On Friday, just 12 days after marijuana became legal for adults across the state, the California Secretary of State’s office announced it would begin accepting trademark applications from cannabis brands with products or services to offer.
This is a monumental step for the business owners who make up California’s cannabis industry as counterfeiting has become increasingly prevalent while more brands aim to establish consumer trust and loyalty within the state’s marketplace.
A state trademark allows a brand to solidify its product or service among the legitimate marijuana market and establish its name to avoid having other companies cash in on their footwork. The trademark serves as a notifier to the public of who holds ownership over that word, symbol, or phrase representing the business, service, or product. It also ensures that consumers know where their products truly come from.
However, businesses will only be able to secure a trademark in the State of California, leaving their intellectual property, branding, and other valuable assets defenseless nationwide. Because interstate trade of federally-prohibited items is still a serious crime, California cannabis businesses can only operate within state lines, but consumers in other states may not be aware of this when they see a recognizable brand on their local shelves.
Marijuana.com spoke with Stewart Richlin, a cannabis-focused attorney who has represented more than 600 businesses in the industry. Richlin praised the trademark process “because it tells the consumer the origin of goods.”
“If I buy a well-known product such as BAND-AID, I know that brand is the brand I’m getting services from, which is a benefit to consumers that was created as part of the intellectual properties system dating back to the Constitution. It’s a brilliant invention.”
Cannabis flower, and the concentrates made from it, are difficult products to brand. Due in no small part to the confusing way marijuana has been named over the years. Some cultivators and have developed strains through generations of selective breeding only to have that name used by other growers with a similar plant. The ability to trademark cannabis products within the state alleviates some of this concern for new products but comes with challenges for existing strain names.
Richlin alluded to this concern, explaining, “it’s good to be able to protect names as long as it’s not used in a tricky way or someone tries to protect a name that is already public. A difficulty with trademarking cannabis is flavors or strains that are already in the public domain. It will be interesting to see if companies change strains to trademarkable names. If someone were to trademark ‘Grape Ape,’ what will collectives already selling it do? Now, it’s a court case where one person is going to steal a name that many use. Some retailers will modify the name to a similar variation, i.e. Grape ‘Monkey.’ Consumers will be confused. When they go looking for Grape Ape, retailers will say, ‘we have Grape Monkey.’”
Marijuana product manufacturers have been borrowing references from the mainstream consciousness to name their products since long before the industry began to emerge from the shadows of prohibition within the last half-decade. References to Star Wars, classic board games, and even a Seth Rogen movie, among others, are highly prevalent on flower menus across the legalized market.
As the industry grew and strains like Gorilla Glue moved increasingly into the national spotlight, established mainstream brands with legal rights to the valuable trademarks — as in, the actual glue company, Gorilla Glue — began to catch wind of the trademark infringements and subsequently took legal action against the federally-banned brands.
As packaging regulations become standardized, and commercial marijuana brands become more ordinary, it will be interesting to see if a consumer-focused certification process like JD Power & Associates for automobiles takes shape in the marijuana industry.
Legitimate cannabis products will no doubt continue to be bootlegged by knockoff artists, but now the threat of a trademark lawsuit at least offers the industry a fighting chance at eliminating one of the black market’s most harmful elements.
Cover image courtesy of Allie Beckett