Marijuana related businesses cannot register federal trademarks. Trafficking in marijuana is prohibited by the Federal Controlled Substances Act. Any schedule 1 drug cannot meet the standard of legal use of the mark in interstate commerce even in states where medical marijuana use is legalized. This limits the ability of commercial marijuana manufacturers and dispensers to expand their brand nationally or to license their brand’s intellectual property.
Marijuana businesses can still register trademarks at the state level on a state-by-state basis. This is more cumbersome and expensive procedure and may potentially lead to inconsistencies in trademark protection between states. Enforcement will, for practical purposes, be limited to state courts because federal law prohibits marijuana and evidence of compliance with state law is precluded in federal court. Thus, state anti-competition and common law trademark will play a greater role in the marijuana industry’s trademark protection and enforcement strategy.