Can You Trademark Your Pot?

from the whoa dept

Kal Raustiala and Chris Sprigman, continuing their excellent blogging (soon to be in book form) about markets succeeding in absence of intellectual property, have taken a look at the question of whether or not different brands of marijuana can be covered by trademark. With the increasing legality of medical marijuana, it's not uncommon for different strands to get their own brands. However, as the two note, plant varieties cannot be trademarked, but you can build a brand on top of one. So, as an example, Fuji apples cannot be trademarked, because that's a variety -- but Rainier Brand Fuji Apples is a trademark.

Of course, if you were dealing with a pot brand rather than a variety, could you trademark it? Well, you don't need to register a trademark to get protections. There are common law trademarks which get you pretty far without registering -- though it doesn't appear that anyone's tested such a pot trademark in court. As for a registered trademark, the USPTO apparently created a medical marijuana category for trademarks... very, very briefly. And then someone apparently realized this might be a political nightmare and that category suddenly disappeared.

Amusingly, the pair note that someone did try to trademark "Marijuana" for a drink, but it was denied with a bit of moralizing from the PTO: "the term MARIJUANA refers to an illicit drug that is associated with illegal behavior and adverse health consequences. The proposed mark is therefore immoral or scandalous and thus unregistrable." Personally, I think it's kind of awesome to have a trademark rejected for being "scandalous." I'm impressed.

Either way, the end result is basically that there doesn't appear to be much in the way of legal protections for the various brands of pot that are found in medical marijuana dispensaries. While Raustiala and Sprigman don't get into it, it would seem like this creates another "pure" market to study, to see what happens in a brand-based market without trademark protections. Is copying of brand names common? Do less potent forms of pot try to draft off of more famous brands? Or does the market have a way of working itself out? It seems like a worthwhile market to study for someone enterprising.

Update: By the way, if you find this interesting, Raustiala and Sprigman's new book, The Knockoff Economy: How Imitation Sparks Innovation is now available for pre-order...
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Filed Under: marijuana, plant varieties, pot, trademark


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  • identicon
    Anonymous Coward, 27 Aug 2012 @ 2:17pm

    I've always wondered, how is medical marijuana administered exactly?

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Aug 2012 @ 2:18pm

    The other question is just as important:
    Can you PATENT your home grown genetically modified marijuana strain, ala Monsanto?

    link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Aug 2012 @ 4:11pm

      Re:

      You can get "cultivar protection", AKA "plant variety protection". In Canada, a company called "GW Pharma" laid claim to a cultivar called "grace". http://www.inspection.gc.ca/english/plaveg/pbrpov/cropreport/hem/app00005457e.shtml

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Aug 2012 @ 7:01pm

        Re: Re:

        The US has two possible means along the line you mention. There are plant patents under 35 USC 161, or Plant Variety Protection under Chapter 57 to Title 7 of the US Code. They are administered, repectively, by the USPTO (Department of Commerce) and the Plant Variety Protection Office (Department of Agriculture). The line of demarcation between these two is the means by which the plants are reproduced.

        link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Aug 2012 @ 9:52am

          Re: Re: Re:

          Merely as an aside, CAFC caselaw, as best I recall, long ago cast aside all notions of "morality" and the like in evaluating whether or not an invention may receive a patent. Hence, I am aware of no basis upon which an application for a plant patent can be denied that is addressed to a particular strain of marijuana. Of course, any plant invention must still meet all other requirements for patentability.

          link to this | view in chronology ]

  • identicon
    Bruce Partington, 27 Aug 2012 @ 2:31pm

    Ranier Brand Fuji Apples is a trademark.

    Are you sure? I just Googled for it and it doesn't exist. Hopefully your reportage is more accurate.

    link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Aug 2012 @ 2:48pm

      Re:

      link to this | view in chronology ]

      • identicon
        Bruce Partington, 27 Aug 2012 @ 2:52pm

        Re: Re:

        You found "Rainier Brand Fuji Apples". Similar but not what he's saying. Fact-checking fail for you, though you can see why he's confused.

        Try searching for "Ranier Brand Fuji Apples" and see if you find them.

        link to this | view in chronology ]

        • icon
          SujaOfJauhnral (profile), 27 Aug 2012 @ 3:08pm

          Re: Re: Re:

          Perhaps it was a typo?

          link to this | view in chronology ]

          • identicon
            Bruce Partington, 27 Aug 2012 @ 3:37pm

            Re: Re: Re: Re:

            Definitely a typo. But perhaps indicative of the amount of attention to detail and fact-checking here, to make an assertion in the very first paragraph (and still uncorrected as I post) that's prima facie wrong.

            If all the articles here exhibited these characteristics this blog wouldn't be worth reading except as a source of cheap laughs. Fortunately they aren't (just some).

            link to this | view in chronology ]

            • icon
              Vog (profile), 27 Aug 2012 @ 4:11pm

              Re: Re: Re: Re: Re:

              And yet instead of saying "Hey, Mike, there's a typo, it should be Rainier", you chose the most snobbish way to make your point for no apparent reason.

              Even if the brand didn't exist, or if he named "Shamawalagaba Brand Fuji Apples" (so as to not be "shilling for a brand"), his point still stands; yet you choose to use this meaningless contradiction as evidence of his lapse in journalistic prowess.

              ...Why?

              link to this | view in chronology ]

              • identicon
                Bruce Partington, 27 Aug 2012 @ 4:42pm

                Re: Re: Re: Re: Re: Re:

                ...Why?

                1) I didn't see you doing it.

                2) I needed some up-to-date data points for my longitudinal study of epistemic closure's correlation to male aggression in partisan news sites. The general level of male rage around here makes it necessary to use a strong signal so it can be distinguished from the ambient background.

                3) It was more respectful than accusing Masnick (with whom I am not on a first-name basis, unlike you) of writing while stoned.

                4) Logic test. (You passed.)

                HTH.

                link to this | view in chronology ]

                • icon
                  Gwiz (profile), 27 Aug 2012 @ 5:14pm

                  Re: Re: Re: Re: Re: Re: Re:

                  I needed some up-to-date data points for my longitudinal study of epistemic closure's correlation to male aggression in partisan news sites.

                  Well fuck. There goes my idea for a "waste-of-taxpayer-money" research grant I was going to get rich with.

                  link to this | view in chronology ]

            • icon
              That Anonymous Coward (profile), 27 Aug 2012 @ 4:35pm

              Re: Re: Re: Re: Re:

              So what we have learned here is mom rushed your potty training... got it.

              link to this | view in chronology ]

    • icon
      John Fenderson (profile), 27 Aug 2012 @ 2:49pm

      Re:

      Here's what he was saying: Rainer Fruit Company is trademarked. Fuji Apples cannot be trademarked, however if you use the two together: Rainer Fruit Company(r) Fuji Apples, then that's as good as a trademark because of the specificity.

      Hopefully, your reading comprehension will become more accurate.

      link to this | view in chronology ]

      • identicon
        Bruce Partington, 27 Aug 2012 @ 3:40pm

        Re: Re:

        Here's what he was saying: Rainer Fruit Company is trademarked.

        My comprehension's better than your spelling, Insider. But at least you're willing to put a name to your misimpressions. Cornell alum?

        link to this | view in chronology ]

        • icon
          Vog (profile), 27 Aug 2012 @ 4:01pm

          Re: Re: Re:

          I hope when I'm as old as you are, I won't be nearly as needlessly pedantic.

          link to this | view in chronology ]

          • identicon
            Bruce Partington, 27 Aug 2012 @ 4:14pm

            Re: Re: Re: Re:

            I hope when I'm as old as you are, I won't be nearly as needlessly pedantic.

            That's an excellent approach -- you should aspire to be at most half as needlessly pedantic. Or perhaps 10% would be best, you decide what's appropriate for you...

            Glad to give you the opportunity for a head start.

            link to this | view in chronology ]

        • icon
          John Fenderson (profile), 27 Aug 2012 @ 4:39pm

          Re: Re: Re:

          Your funie!

          link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Aug 2012 @ 3:37pm

      Re:

      I couldn't find it in the USPTO database, but it could be a common law trademark.

      link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 27 Aug 2012 @ 4:42pm

      Re:

      Are you sure? I just Googled for it and it doesn't exist. Hopefully your reportage is more accurate.


      It was a typo. I left out an i, which has now been fixed. It's not the end of the world. We make typos. Most people point them out, nicely, and we fix them.

      Some people aren't so nice.

      Either way, it wouldn't matter, because it was merely an example of how something could be a trademark. I could have just easily said "xkfjq;fj; Fuji Apples" and the point would have been just as valid.

      link to this | view in chronology ]

      • icon
        Wally (profile), 28 Aug 2012 @ 5:45am

        Re: Re:

        "Most people point them out, nicely, and we fix them."

        I do admit this about myself: Sometimes it is hard for me to be nice back when debating, and it's the only argument they can use against me....but I digress.

        link to this | view in chronology ]

  • icon
    Zos (profile), 27 Aug 2012 @ 2:32pm

    yes, absolutely you get imposters in the pot market. Famous strain names get tossed around all over the place.

    there's a lot of work being done by a lot of different groups to get something a little more standardized in place, usually based off of registered genetics. But in the end consumer protection comes down to experience and trust. If you didn't grow it, or know the grower, chances are, that chemdawg isn't.

    link to this | view in chronology ]

    • icon
      Wally (profile), 27 Aug 2012 @ 2:55pm

      Re:

      "yes, absolutely you get imposters in the pot market. Famous strain names get tossed around all over the place. "

      Some of the imposters use microscopic glass beads to make the plant look like it has more THC crystals.

      link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Aug 2012 @ 2:37pm

    How much you want to bet they're recycling some of the stuff police and customs catch to save costs.

    link to this | view in chronology ]

  • identicon
    Karim, 27 Aug 2012 @ 2:46pm

    it would seem like this creates another "pure" market to study

    Pure awesome.

    link to this | view in chronology ]

  • identicon
    Glen, 27 Aug 2012 @ 2:47pm

    We have to smoke the answer out as soon as possible!!!!

    link to this | view in chronology ]

  • icon
    PlagueSD (profile), 27 Aug 2012 @ 3:08pm

    MARIJUANA refers to an illicit drug that is associated with illegal behavior and adverse health consequences.


    and what illegal behavior and adverse health consequences are there?

    link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Aug 2012 @ 4:09pm

      Re:

      Well, it is illegal so it is associated with illegal behavior. And if you get caught with it the adverse health consequences are from being ass raped in prison.

      Stupid is as circular reasoning does.

      link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 27 Aug 2012 @ 4:36pm

      Re:

      And yet there was an energy drink called cocaine.

      link to this | view in chronology ]

    • icon
      Niall (profile), 28 Aug 2012 @ 4:52am

      Re:

      There's the damage to mental health and for younger long-term users, damage to brain function/IQ. Quite aside from any risks associated with smoking it...

      link to this | view in chronology ]

  • identicon
    Anonymous, 27 Aug 2012 @ 3:12pm

    As if we needed another reason why America deserves to die and burn in the hell of its own making.

    link to this | view in chronology ]

  • icon
    gorehound (profile), 27 Aug 2012 @ 3:53pm

    There a ton of different names.I usually get strains of White Russian, AK-47, Super Lemon Haze, Sour Diesel, Blueberry......There are more.

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Aug 2012 @ 7:25pm

    Get out the Vote

    In Oregon, Washington and Colorado The legalization of marijuana will be up for a vote this fall.
    I hope it passes.Vote for it!

    link to this | view in chronology ]

  • identicon
    Marijuana Seeds, 14 Nov 2013 @ 6:56pm

    ttrademark

    The myth of marijuana in the U.S. attests to just how easily the media can control our thoughts, and I am sure that there are many other topics that the media twists to get what they want.

    link to this | view in chronology ]

  • identicon
    Cannabis seeds, 21 Jun 2017 @ 2:53am

    Trademark MJ

    Hmmm, patent on cannabis seeds is funy shit ;)

    link to this | view in chronology ]

  • identicon
    best cannabis seed bank, 7 Jun 2018 @ 9:23am

    Trademark

    patent cannabis lol :D

    link to this | view in chronology ]


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