A June 16, 2020 precedential decision by the Trademark Trial and Appeal Board held that Federal trademark registration is not available for food, beverages, or nutritional/dietary supplements to which hemp-derived cannibidiol (CBD) has been added. Here is what you need to know aboutIn re Stanley Brothers Social Enterprises, LLC.

In this case, the applicant sought federal trademark registration of the mark CW, for hemp oil extracts sold as an integral component of dietary and nutritional supplements in Class 5. On appeal, the Board took the position that dietary supplements are a food and that hemp-derived CBD is an extract of the cannabis plant that is regulated as a drug under the Food, Drug, and Cosmetics Act (FDCA). The sale of CBD-infused food or dietary supplements is a per se violation of the FDCA, and a mark for such products is not federally registrable. Additionally, as the record was absent any evidence that CBD-infused food had been marketed prior to institution of the clinical investigations, CBD does not fall within any exception to the FDCA that might be available to other foods or dietary supplements on the market to which drugs or biological products have been added.In light of this decision, how can brand owners protect their CBD ingredient brands?

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MarkIt to Market - June 2020: CBD Ingredient Brands - Trademark Registration Is Possible, but May Be a Tough Pill to Swallow - JD Supra