CANNABIS & HEMP TRADEMARK REGISTRATION
Federal trademark registration for cannabis remains closed — the U.S. Patent and Trademark Office (USPTO) does not register marks for cannabis products or services because marijuana remains a Schedule I controlled substance under the federal Controlled Substances Act, making federal “lawful use in commerce” impossible to satisfy. But brand protection is not binary, and cannabis and hemp businesses in California have more options than most operators realize. Shay Aaron Gilmore is recognized by the Los Angeles and San Francisco Daily Journal as one of California’s Top 20 Cannabis Lawyers, named to the Top 100 Northern California Super Lawyers list, recognized among the Top 200 Global Cannabis Lawyers by the Cannabis Law Journal, and serves as Board Member of the International Cannabis Bar Association (INCBA) and Chair of the California Lawyers Association Cannabis Practitioners Group (CLA CPG). The Law Office of Shay Aaron Gilmore helps cannabis and hemp businesses build trademark portfolios that are durable, strategically layered, and positioned for federal expansion when federal law changes.
Recognized By
Super Lawyers® Magazine
Top 20 California Cannabis Lawyers
The Daily Journal
California NORML
Global Top 200 Cannabis Lawyer
Cannabis Law Journal
The Federal Trademark Barrier — and Its Workarounds
The USPTO’s position is clear: under Sections 1 and 45 of the Lanham Act (15 U.S.C. §§ 1051, 1127), trademark registration requires lawful use in commerce, and cannabis products do not qualify because cannabis remains illegal under federal law regardless of state legalization. The Trademark Trial and Appeal Board (TTAB) has consistently affirmed this position, including in In re JJ206, LLC (120 U.S.P.Q.2d 1568 (T.T.A.B. 2016)), which held that state marijuana laws are irrelevant to the federal lawfulness determination.
The critical exception is hemp. The 2018 Farm Bill removed hemp (defined as cannabis sativa with THC ≤ 0.3% on a dry weight basis) from the Controlled Substances Act’s definition of marijuana. Following this change, the USPTO issued Examination Guide 1-19 (May 2, 2019), which opened federal trademark registration for qualifying hemp products — specifically non-ingestible hemp-derived goods such as topicals, skincare, and clothing. Ingestible hemp products (foods, beverages, dietary supplements, and pet treats containing CBD) remain refused under the Federal Food, Drug, and Cosmetic Act, even if derived from hemp.
Cannabis companies can pursue federal protection for ancillary goods and services — grinders, apparel, branded merchandise, cannabis education services, cannabis consulting, and directories — as long as those goods and services are themselves federally lawful. This “shadow portfolio” strategy allows a cannabis brand to secure federal registration today for brand-adjacent assets, with priority dates that will matter when federal cannabis law changes.
Cannabis vs. Hemp: Federal Trademark Eligibility
| Category | Cannabis Products | Hemp Products (≤0.3% THC) |
|---|---|---|
| Federal USPTO registration | Unavailable (Schedule I) | Available for non-ingestible goods |
| Federal registration — ingestible goods | Unavailable | Refused under FDCA |
| California SOS registration | Available (lawful in-state use) | Available |
| Common law protection | Automatic on first use | Automatic on first use |
| "Shadow portfolio" federal strategy | Possible via ancillary goods | Possible directly |
California State Trademark Registration
California opened state-level trademark registration for cannabis businesses on January 1, 2018, through the Secretary of State’s office. Cannabis-related marks may be registered at tmbizfile.sos.ca.gov as long as: (1) the mark is lawfully in use in commerce within California; (2) the mark matches USPTO classification codes; and (3) the associated goods or services are authorized under California law, including applicable local and state licensing. State trademark registration provides evidence of first use, public notice of the brand’s claimed rights, and enforcement tools against infringers operating within California — but protection does not extend beyond state borders.
Common law trademark rights arise automatically from first use in commerce, without any registration. Documenting first-use dates through dated invoices, photos of product packaging, and digital records is essential because priority in trademark disputes is determined by who used the mark first. Cannabis businesses operating since before state registration was available in 2018 may have common law rights that predate any registered mark held by a later entrant.
Trademark Clearance and Registration Strategy
A comprehensive trademark strategy for a cannabis or hemp company should include:
- Clearance search — A search of the USPTO TESS database, the California SOS trademark database, and common law channels (including internet and industry publication searches) to identify conflicting marks before investment in branding.
- California SOS registration — For cannabis brands, this is the first formal registration step. It confers documented priority and a public record.
- USPTO registration for ancillary goods/services — Building a shadow portfolio of federally registered marks in related lawful categories.
- USPTO registration for qualifying hemp products — For brands with hemp product lines that meet the Examination Guide 1-19 criteria.
- Cease-and-desist and enforcement — Monitoring for infringement and responding with appropriate legal tools when competitors use confusingly similar marks.
Representative Matters
The following examples illustrate trademark and brand protection work performed by this office. Confidential matters are described in general terms only.
- Cannabis Technology IP Owner (Confidential): Represented a California cannabis technology inventor and IP owner in negotiating a national distribution agreement with a major distributor, including royalty and profit-sharing provisions valued at $250,000–$750,000 per annual term. Drafted and negotiated the full suite of IP protection and licensing provisions governing the commercial relationship.
- Hemp & Cannabinoid Retailer — Brand and Regulatory Compliance (Medterra CBD, LLC): Represented Medterra CBD, LLC, an online retailer of hemp and cannabinoid products, in government relations and legislative counseling on California Assembly legislation affecting online cannabis and hemp retail platforms. Provided testimony before the Judiciary Committee of the California State Assembly and advised on the marketing compliance and brand strategy implications of the legislation.
Frequently Asked Questions
Not for dispensary services or cannabis goods — the USPTO requires “lawful use in commerce” under federal law, and dispensing cannabis remains federally illegal under the Controlled Substances Act regardless of California’s legalization. You can, however, register marks for ancillary goods and services (branded clothing, accessories, cannabis education, consulting) and pursue California state trademark registration for the dispensary brand itself.
California has accepted cannabis trademark applications since January 1, 2018, through the Secretary of State’s Cannabizfile portal. Eligibility requires that the mark be in lawful use in commerce within California, that associated goods and services comply with California cannabis law (including having required DCC and local licenses), and that the goods/services fall within USPTO classification categories. State registration is California-only but provides public notice, a recorded priority date, and an enforcement platform within the state.
A shadow portfolio is a set of federal trademark registrations for brand-adjacent goods and services that are federally lawful — for example, branded t-shirts, hats, lighters, grinders, or cannabis education services — using the same mark and logo as your cannabis brand. When federal law eventually changes, these registrations establish priority dates that will govern any federal expansion of the trademark to cannabis goods and services. It is a forward-looking investment in brand equity that is particularly valuable for cannabis brands with national ambitions.
Yes, for qualifying products. Following the 2018 Farm Bill and the USPTO’s Examination Guide 1-19, non-ingestible hemp-derived products (topicals, skincare, clothing, cosmetics derived from hemp) can qualify for federal registration. Ingestible hemp products — foods, beverages, dietary supplements, and pet treats containing CBD — are still refused under the FDA’s position that CBD is a drug ingredient that cannot be added to food. Each product category must be analyzed individually.
If you hold a California state trademark registration or have documented common law priority (first use), you may send a cease-and-desist letter and, if necessary, initiate a civil action under California’s Model State Trademark Law (California Business and Professions Code § 14200 et seq.). Common law trademark rights also allow you to sue for unfair competition and trade dress infringement under California law. Enforcement strategy depends on the strength of your mark, the overlap in goods/services, and the evidence of consumer confusion.