When launching a cannabis business, entrepreneurs face additional hurdles due to the legal complexities facing the industry, and the prohibition of cannabis at the federal level. Cannabis businesses must deal with a complicated banking regime, licensure requirements, and state and municipal regulatory requirements. In the face of all of these start-up requirements, one crucial aspect of starting your cannabis business might be easy to forget: protecting your company’s intellectual property.
Yet a cannabis business’s IP can be one of its biggest assets, especially as a new business. Here are the most important aspects of creating and protecting your IP that every cannabis business owner should know.
Protecting Your Brand
Despite federal prohibition, cannabis business owners can still protect their brand IP. A trademark is the best way to protect your brand’s name, logo, and design materials. While the USPTO will refuse to register a mark related to a direct cannabis business, cannabis business may find success in registering a trademark on ancillary services they provide, such as selling smoking accessories or apparel.
While a federal trademark offers the strongest protection, many states with legal cannabis markets allow for state trademark registration of direct cannabis brands.
If you are actively using your branding in commerce, that is to actually sell products or services to consumers, then you may have common law trademark protection even without state or federal registration. Be sure to include the TM symbol with your logo to indicate that you have a valid trademark. However, common law trademarks may be difficult to enforce, and so registering your trademark with the USPTO will ensure you can enforce your trademark.
Additionally, the United States Copyright Office has no requirement that copyright is tied to a legal good or service. While copyright protection will not be afforded simply to a trade name, a brand logo, if sufficiently creative, may be entitled to copyright protection.
Protecting your Company Technology and Inventions
While the USPTO will refuse to register a trademark related to a direct cannabis product or service, we are seeing more and more cannabis companies protect their IP through patent registration. A utility patent may afford a cannabis business owner protection over things like extraction and cultivation methods, smoking and vaping devices or any company developed software.
Recently, cannabis businesses have started utilizing plant patents to protect any new and nonobvious strain of the cannabis plant. However, a plant patent may afford less protection than a utility patent since plant patents are limited to a single genome.
Finally, company inventions, techniques, or methods can be protected as trade secrets. Unlike other forms of IP, protecting trade secrets requires a business to maintain the IP’s confidentiality, rather than filing for protection. A cannabis company should ensure they have the proper IP and confidentiality agreements in place with employees, business partners, and contractors as well as internal policies to protect trade secrets from disclosure.
Cannabis businesses should prioritize IP protection early in a company’s life cycle, both to protect a valuable company asset, and to prevent any possible legal actions from potential competitors.
Have more questions about your Cannabis IP? Get in touch with the Buddle Legal team for answers!