By Tony Flesor, LAW WEEK COLORADO
Lawyers have entered uncharted land as more and more practices expand into the marijuana realm. Intellectual property has shown this to be true perhaps more than any other practice area.
With marijuana still federally outlawed, the list of intellectual property protections for pot businesses is fairly short. IP lawyers must navigate existing rules and developing attitudes in patent and trademark law to determine how they can serve clients.
As Todd Blakely, a partner at Sheridan Ross, said, it’s an interesting area but not a deep one. He said the firm has worked with clients on patents and trademarks for marijuana-related issues, though they haven’t dealt with strains or plants specifically. Many of the issues at play for IP lawyers can be summed up with the fact that just about everything is new and the U.S. Patent and Trademark Office isn’t entirely sure how to handle it all.
The two primary pieces of intellectual property, patents and trademarks, have vastly different applications in marijuana law. For trademarks, there are two primary components. Marks for products or businesses directly involving cannabis simply don’t exist, however, when cannabis is tangential to the trademark, there’s much more wiggle room.
Under current law, things directly involving cannabis can’t be trademarked. According to the Lanham Act, the U.S. Patent and Trademark Office is unable to approve a trademark for anything “immoral, deceptive or scandalous.” This includes things directly prohibited by federal law.