Can You Trademark Your Pot?

from the whoa dept

Mon, Aug 27th 2012 2:04pm — Mike Masnick

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

41 Comments

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Anonymous Coward, 27 Aug 2012 @ 2:17pm

I've always wondered, how is medical marijuana administered exactly?
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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?
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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.
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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.
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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.
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Karim, 27 Aug 2012 @ 2:46pm

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

Pure awesome.
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Glen, 27 Aug 2012 @ 2:47pm

We have to smoke the answer out as soon as possible!!!!
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Anonymous Coward, 27 Aug 2012 @ 2:48pm

Re:
Um, yes, it does. http://www.rainierfruit.com/products/variety.html?varietyid=4
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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.
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Wally (profile), 27 Aug 2012 @ 2:50pm

Re:
To the patient:

Take lit doobie to mouth and inhale.
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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.
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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.
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SujaOfJauhnral (profile), 27 Aug 2012 @ 3:08pm

Re: Re: Re:
Perhaps it was a typo?
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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?
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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.
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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).
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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.
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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?
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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.
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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.
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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.
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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?
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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
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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.
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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.
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That Anonymous Coward (profile), 27 Aug 2012 @ 4:36pm

Re:
And yet there was an energy drink called cocaine.
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John Fenderson (profile), 27 Aug 2012 @ 4:39pm

Re: Re: Re:
Your funie!
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That Anonymous Coward (profile), 27 Aug 2012 @ 4:39pm

Re:
A variety of ways, one of the more common being converting the plant material into an oil so that it can be mixed with more things.

Xeni Jardin attended a dinner where they used pot in a multitude of ways preparing food.

http://boingboing.net/2012/04/23/my-dinner-with-marijuana-chem.html
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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.
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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.
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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.
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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.
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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!
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Pixelation, 27 Aug 2012 @ 10:38pm

Re:
Uh, hahaha, um...I forgot, what were we talking about again?
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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...
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Wally (profile), 28 Aug 2012 @ 5:37am

Re: Re:
This got my funny vote :-)
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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.
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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.
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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.
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Cannabis seeds, 21 Jun 2017 @ 2:53am

Trademark MJ
Hmmm, patent on cannabis seeds is funy shit ;)
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best cannabis seed bank, 7 Jun 2018 @ 9:23am

Trademark
patent cannabis lol :D
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