DENVER – Snoop Dogg has his own line of marijuana. So does Willie Nelson. Melissa Etheridge has a marijuana-infused wine.
As the fast-growing cannabis industry emerges from the black market and starts looking like a mainstream activity, there is a scramble to brand and trademark pot products.
The celebrity endorsements are just the latest attempt to add cachet to a line of weed. Snoop Dogg calls his eight strains of pot “DANK FROM THE DOGGFATHER HIMSELF.” Nelson’s yet-to-be-released line says the product is “born of the awed memories of musicians who visited Willie’s bus after a show.”
The industry’s makeshift branding efforts, from celebrity names on boxes to the many weed-themed T-shirts and stickers common in towns with a legal marijuana market, show the industry taking halting steps toward the mainstream.
The problem is, those brands are not much more substantial than the labels they are printed on. Patents and trademarks are largely regulated by the federal government, which considers marijuana an illegal drug and therefore ineligible for any sort of legal protection. The result is a Wild West environment of marijuana entrepreneurs trying to stake claims and establish cross-state markets using a patchwork of state laws.
The result is that consumers have no way of knowing that celebrity-branded pot is different from what they could get in a plastic bag from a corner drug dealer.
“You can’t go into federal court to get federal benefits if you’re a drug dealer,” said Sam Kamin, a University of Denver law professor who tracks marijuana law.
That isn’t for lack of trying.
Hundreds of marijuana-related patents have likely been requested by the U.S. Patent and Trademark Office, according to those who work in the industry. Exact numbers are not available because pending patent information is not public.
So far federal authorities have either ignored or rejected marijuana patent and trademark requests, as in the 2010 case of a California delivery service that applied to trademark its name “The Canny Bus.”
“They haven’t issued a single patent yet. But generally speaking there is broad agreement within the patent law community that they will,” said Eric Greenbaum, director of intellectual property for Ligand Pharmaceuticals, Inc., which is seeking a patent for a strain of marijuana to treat seizures that it has developed in Minnesota.
Companies like Ligand are betting that if marijuana becomes nationally legal, they will be first in line to claim legal ownership of whichever type of marijuana they have already developed.
Pot companies are also filing state-level trademarks, thereby avoiding the snag in a federal trademark application: the requirement that the mark is used in interstate commerce, which remains off-limits for pot companies. In Colorado, for example, there are nearly 700 trade names and 200 trademarks registered that include the word “marijuana” or a synonym, Kamin said.
Marijuana producers are also claiming everything they can that doesn’t involve actual weed. So a pot company could trademark its logo, or patent a process for packaging something, without mentioning that the “something” is marijuana.
The marijuana industry certainly has been on the receiving end of legal threats from other companies that do have trademark and patent protection. Cease-and-desist letters are not uncommon in the mailboxes of marijuana companies.
Last year, Hershey Co. sued two marijuana companies in Colorado and Washington for selling “Reefer’s” peanut butter cups and “Dabby Patty” candies, which resembled Hershey’s Reese’s Peanut Butter Cups and York peppermint patties. Both pot companies agreed to stop selling the products and destroy any remaining inventory.