The Law Office of Shay Aaron Gilmore – Cannabis Lawyer San Francisco
Schedule a Consultation
Shay Aaron Gilmore – California Cannabis and Hemp Business Lawyer

Intellectual Property Law

Experienced Intellectual Property Counsel

Brand, technology, and know‑how are often a cannabis or hemp company’s most valuable assets. The firm helps operators, investors, and product developers protect and commercialize their intellectual property in a regulatory environment where federal trademark protection for many THC products remains constrained, while hemp and ancillary offerings may be fully registrable.

Engagements range from strategic advice on brand architecture and trademark portfolios to negotiation of complex IP and distribution agreements for proprietary hardware and formulations. The practice has represented inventors of next‑generation vaporizer technology in nationwide distribution deals, crafting royalty and profit‑sharing structures that capture upside while addressing product‑liability and regulatory risk. It also advises on trade secret protection for cultivation methods, extraction processes, formulations, and SOPs, with appropriate confidentiality, employment, and ownership agreements.

The firm’s IP work is closely integrated with its regulatory and commercial contracting practice: intellectual‑property licenses, white‑label arrangements, and technology collaborations are drafted to address cannabis‑specific issues such as federal illegality, state marketing restrictions, and rapidly evolving product standards.

The Law Office of Shay Aaron Gilmore provides strategic intellectual property counsel to cannabis and hemp companies at all stages of growth, assisting with acquiring, managing, licensing, developing, prosecuting, and defending intellectual property in all forms.

What Intellectual Property Issues Do Cannabis Businesses Face?

From Shay’s interview for the Master’s series on ReelLawyers.com

Intellectual property issues come up frequently for cannabis and hemp businesses, especially around licensing and intellectual property agreements. This includes matters like cross-licensing or determining the value of cannabis-related intellectual property.

These issues can be particularly challenging due to the rapidly evolving market and ongoing legal uncertainties.

Trademark Protection: The Federal Divide Between Cannabis and Industrial Hemp One of the sharpest IP distinctions between cannabis and industrial hemp is access to the federal trademark system. Because cannabis remains a Schedule I controlled substance, the U.S. Patent and Trademark Office will not register trademarks for goods or services involving cannabis with more than 0.3% delta-9 THC — the mark cannot satisfy the “lawful use in commerce” requirement when the underlying commerce violates federal law. This bar applies regardless of whether the applicant is fully licensed under California law. Cannabis operators are therefore limited to California state trademark registration through the Secretary of State’s Cannabizfile portal, which provides protection only within California’s borders and, unlike a federal registration, cannot be filed on an intent-to-use basis — the brand must already be in lawful commercial use before the application is submitted. Industrial hemp businesses occupy a fundamentally different position. The 2018 Farm Bill removed hemp (cannabis sativa with no more than 0.3% delta-9 THC on a dry weight basis) from the Controlled Substances Act, and the USPTO subsequently issued Examination Guide 1-19 confirming that marks for hemp and hemp-derived goods and services are eligible for federal registration — provided the goods comply with the Farm Bill’s THC limits and are otherwise lawful under federal law, including the Federal Food, Drug, and Cosmetic Act. This means a hemp brand can secure nationwide protection through a federal registration on the Principal Register, with all the enforcement advantages that come with it: constructive notice of ownership, a presumption of validity, access to federal court, and the ability to record the mark with U.S. Customs to block infringing imports. However, the USPTO will still refuse registration for hemp-derived foods, beverages, dietary supplements, and pet treats containing CBD where those products raise issues under the FDCA — a nuance that catches many hemp companies off guard. The firm advises cannabis and hemp clients on building trademark portfolios that account for these federal–state divides, including securing state registrations for THC products, federal registrations for hemp brands, and defensive filings for ancillary goods and services that qualify for federal protection regardless of THC content.

The firm provides Intellectual Property Law services to cannabis and hemp operators and investors in:

Focused on Protection of Cannabis and Hemp Intellectual Property

Whether it’s a secret recipe or the company’s brand, ideas can be an enterprise’s most valuable asset. The Law Office of Shay Aaron Gilmore identifies, protects, and defends intellectual property rights for cannabis and hemp companies throughout California. The Law Office of Shay Aaron Gilmore supports clients with the following legal services:

From clearance to registration to cease-and-desist letters, The Law Office of Shay Aaron Gilmore helps businesses identify protectable intellectual property assets and develop a pragmatic approach for protection and value optimization.

Representative matters
  • Advised an inventor of a mechanical vaporizer system on a nationwide distribution agreement with a major distributor, including multi‑year royalty and profit‑sharing provisions tied to the rollout of hardware.
  • Counseled a hemp and cannabinoid e‑commerce retailer on legislative and regulatory developments affecting online sales, aligning brand and product strategies with emerging state restrictions and opportunities.

In California, cannabis and hemp entrepreneurs have been creating intellectual property for decades. For companies to obtain and sustain a competitive advantage, cannabis and hemp companies must protect their intellectual property, which can range from new methods of growing cannabis to innovative retail software. The Law Office of Shay Aaron Gilmore supports the intellectual property legal services needs of clients with the following:

Related cannabis and hemp business services include: A complete list of Shay’s recent presentations, white papers, and legal articles is available on the Media page. Shay regularly publishes Intellectual Property Law updates and insights on his Cannabis and Hemp Law Blog.
Copyright and Trade Secrets: Protecting Creative Work and Confidential Information in Cannabis and Hemp Copyright is one of the most underutilized IP tools in the cannabis and hemp industries — yet nearly every operator owns copyrightable material whether they realize it or not. The Copyright Act protects original works of authorship the moment they are fixed in a tangible form, and that protection extends to website copy, packaging design and label artwork, product photography, educational materials, marketing content, cultivation guides, and software — with no requirement that the underlying business be lawful under federal law. This means that both cannabis and hemp companies can register copyrights with the U.S. Copyright Office and obtain the enforcement benefits that come with registration: the ability to sue for infringement in federal court, a presumption of ownership, and eligibility for statutory damages and attorney’s fees. However, cannabis-specific copyright enforcement in federal court remains legally untested territory — because cannabis is still a Schedule I substance, there is an open question about whether a federal court would allow a cannabis company to enforce a copyright tied directly to cannabis marketing, packaging, or product design where doing so would require the court to effectively validate an ongoing federal crime. Hemp companies, having been removed from the Controlled Substances Act by the 2018 Farm Bill, face no such barrier and can pursue federal copyright enforcement without the cloud of federal illegality. For cannabis operators, this enforcement uncertainty makes registration no less important — but it does mean that copyright strategy should be paired with contractual protections, takedown procedures, and state-law enforcement options that do not depend on federal court access. Trade secrets are equally critical and involve a sharper regulatory distinction between the two industries. Under the California Uniform Trade Secrets Act (Civil Code §§ 3426–3426.11), any information that derives independent economic value from not being generally known, and that is subject to reasonable secrecy efforts, qualifies for protection — including proprietary genetics, soil formulations, cultivation protocols, extraction parameters, processing techniques, edible and topical recipes, customer lists, and pricing strategies. For cannabis businesses, however, the DCC annual licensing process creates a trade-secret vulnerability that does not exist on the hemp side: license applications require disclosure of standard operating procedures, premises diagrams, and operational details, and if the applicant fails to affirmatively designate that information as confidential trade-secret material, it can become available to competitors through a California Public Records Act request to the DCC. Industrial hemp registrations through the CDFA require substantially less operational detail — cultivators submit location coordinates, acreage, and seed source information, but not SOPs or processing protocols — which means the trade-secret exposure during the registration process is significantly lower for hemp operators. That said, hemp companies that co-develop products, license formulations, or share proprietary information with contract manufacturers, distributors, or retail partners face the same trade-secret leakage risks as any consumer-products business. The firm advises cannabis and hemp clients on copyright registration strategy, trade-secret identification and classification programs, confidentiality designations in DCC license applications and CDFA hemp registrations, and the contractual protections — NDAs, work-for-hire agreements, and IP assignment clauses — needed to keep proprietary information secure across both regulatory frameworks.