Can You Trademark Your Pot?

from the whoa dept

Kal Raustiala and Chris Sprigman, continuing their excellent blogging (soon to be in book form) about markets succeeding in absence of intellectual property, have taken a look at the question of whether or not different brands of marijuana can be covered by trademark. With the increasing legality of medical marijuana, it's not uncommon for different strands to get their own brands. However, as the two note, plant varieties cannot be trademarked, but you can build a brand on top of one. So, as an example, Fuji apples cannot be trademarked, because that's a variety -- but Rainier Brand Fuji Apples is a trademark.

Of course, if you were dealing with a pot brand rather than a variety, could you trademark it? Well, you don't need to register a trademark to get protections. There are common law trademarks which get you pretty far without registering -- though it doesn't appear that anyone's tested such a pot trademark in court. As for a registered trademark, the USPTO apparently created a medical marijuana category for trademarks... very, very briefly. And then someone apparently realized this might be a political nightmare and that category suddenly disappeared.

Amusingly, the pair note that someone did try to trademark "Marijuana" for a drink, but it was denied with a bit of moralizing from the PTO: "the term MARIJUANA refers to an illicit drug that is associated with illegal behavior and adverse health consequences. The proposed mark is therefore immoral or scandalous and thus unregistrable." Personally, I think it's kind of awesome to have a trademark rejected for being "scandalous." I'm impressed.

Either way, the end result is basically that there doesn't appear to be much in the way of legal protections for the various brands of pot that are found in medical marijuana dispensaries. While Raustiala and Sprigman don't get into it, it would seem like this creates another "pure" market to study, to see what happens in a brand-based market without trademark protections. Is copying of brand names common? Do less potent forms of pot try to draft off of more famous brands? Or does the market have a way of working itself out? It seems like a worthwhile market to study for someone enterprising.

Update: By the way, if you find this interesting, Raustiala and Sprigman's new book, The Knockoff Economy: How Imitation Sparks Innovation is now available for pre-order...


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Aug 27th, 2012 @ 2:17pm

    I've always wondered, how is medical marijuana administered exactly?

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Aug 27th, 2012 @ 2:18pm

    The other question is just as important:
    Can you PATENT your home grown genetically modified marijuana strain, ala Monsanto?

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Bruce Partington, Aug 27th, 2012 @ 2:31pm

    Ranier Brand Fuji Apples is a trademark.

    Are you sure? I just Googled for it and it doesn't exist. Hopefully your reportage is more accurate.

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    Zos (profile), Aug 27th, 2012 @ 2:32pm

    yes, absolutely you get imposters in the pot market. Famous strain names get tossed around all over the place.

    there's a lot of work being done by a lot of different groups to get something a little more standardized in place, usually based off of registered genetics. But in the end consumer protection comes down to experience and trust. If you didn't grow it, or know the grower, chances are, that chemdawg isn't.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Aug 27th, 2012 @ 2:37pm

    How much you want to bet they're recycling some of the stuff police and customs catch to save costs.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Karim, Aug 27th, 2012 @ 2:46pm

    it would seem like this creates another "pure" market to study

    Pure awesome.

     

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  7.  
    identicon
    Glen, Aug 27th, 2012 @ 2:47pm

    We have to smoke the answer out as soon as possible!!!!

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    Anonymous Coward, Aug 27th, 2012 @ 2:48pm

    Re:

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    John Fenderson (profile), Aug 27th, 2012 @ 2:49pm

    Re:

    Here's what he was saying: Rainer Fruit Company is trademarked. Fuji Apples cannot be trademarked, however if you use the two together: Rainer Fruit Company(r) Fuji Apples, then that's as good as a trademark because of the specificity.

    Hopefully, your reading comprehension will become more accurate.

     

    reply to this | link to this | view in thread ]

  10.  
    icon
    Wally (profile), Aug 27th, 2012 @ 2:50pm

    Re:

    To the patient:

    Take lit doobie to mouth and inhale.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Bruce Partington, Aug 27th, 2012 @ 2:52pm

    Re: Re:

    You found "Rainier Brand Fuji Apples". Similar but not what he's saying. Fact-checking fail for you, though you can see why he's confused.

    Try searching for "Ranier Brand Fuji Apples" and see if you find them.

     

    reply to this | link to this | view in thread ]

  12.  
    icon
    Wally (profile), Aug 27th, 2012 @ 2:55pm

    Re:

    "yes, absolutely you get imposters in the pot market. Famous strain names get tossed around all over the place. "

    Some of the imposters use microscopic glass beads to make the plant look like it has more THC crystals.

     

    reply to this | link to this | view in thread ]

  13.  
    icon
    SujaOfJauhnral (profile), Aug 27th, 2012 @ 3:08pm

    Re: Re: Re:

    Perhaps it was a typo?

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    PlagueSD (profile), Aug 27th, 2012 @ 3:08pm

    MARIJUANA refers to an illicit drug that is associated with illegal behavior and adverse health consequences.


    and what illegal behavior and adverse health consequences are there?

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous, Aug 27th, 2012 @ 3:12pm

    As if we needed another reason why America deserves to die and burn in the hell of its own making.

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Bruce Partington, Aug 27th, 2012 @ 3:37pm

    Re: Re: Re: Re:

    Definitely a typo. But perhaps indicative of the amount of attention to detail and fact-checking here, to make an assertion in the very first paragraph (and still uncorrected as I post) that's prima facie wrong.

    If all the articles here exhibited these characteristics this blog wouldn't be worth reading except as a source of cheap laughs. Fortunately they aren't (just some).

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Aug 27th, 2012 @ 3:37pm

    Re:

    I couldn't find it in the USPTO database, but it could be a common law trademark.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Bruce Partington, Aug 27th, 2012 @ 3:40pm

    Re: Re:

    Here's what he was saying: Rainer Fruit Company is trademarked.

    My comprehension's better than your spelling, Insider. But at least you're willing to put a name to your misimpressions. Cornell alum?

     

    reply to this | link to this | view in thread ]

  19.  
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    gorehound (profile), Aug 27th, 2012 @ 3:53pm

    There a ton of different names.I usually get strains of White Russian, AK-47, Super Lemon Haze, Sour Diesel, Blueberry......There are more.

     

    reply to this | link to this | view in thread ]

  20.  
    icon
    Vog (profile), Aug 27th, 2012 @ 4:01pm

    Re: Re: Re:

    I hope when I'm as old as you are, I won't be nearly as needlessly pedantic.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Aug 27th, 2012 @ 4:09pm

    Re:

    Well, it is illegal so it is associated with illegal behavior. And if you get caught with it the adverse health consequences are from being ass raped in prison.

    Stupid is as circular reasoning does.

     

    reply to this | link to this | view in thread ]

  22.  
    icon
    Vog (profile), Aug 27th, 2012 @ 4:11pm

    Re: Re: Re: Re: Re:

    And yet instead of saying "Hey, Mike, there's a typo, it should be Rainier", you chose the most snobbish way to make your point for no apparent reason.

    Even if the brand didn't exist, or if he named "Shamawalagaba Brand Fuji Apples" (so as to not be "shilling for a brand"), his point still stands; yet you choose to use this meaningless contradiction as evidence of his lapse in journalistic prowess.

    ...Why?

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Anonymous Coward, Aug 27th, 2012 @ 4:11pm

    Re:

    You can get "cultivar protection", AKA "plant variety protection". In Canada, a company called "GW Pharma" laid claim to a cultivar called "grace". http://www.inspection.gc.ca/english/plaveg/pbrpov/cropreport/hem/app00005457e.shtml

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Bruce Partington, Aug 27th, 2012 @ 4:14pm

    Re: Re: Re: Re:

    I hope when I'm as old as you are, I won't be nearly as needlessly pedantic.

    That's an excellent approach -- you should aspire to be at most half as needlessly pedantic. Or perhaps 10% would be best, you decide what's appropriate for you...

    Glad to give you the opportunity for a head start.

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    That Anonymous Coward (profile), Aug 27th, 2012 @ 4:35pm

    Re: Re: Re: Re: Re:

    So what we have learned here is mom rushed your potty training... got it.

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    That Anonymous Coward (profile), Aug 27th, 2012 @ 4:36pm

    Re:

    And yet there was an energy drink called cocaine.

     

    reply to this | link to this | view in thread ]

  27.  
    icon
    John Fenderson (profile), Aug 27th, 2012 @ 4:39pm

    Re: Re: Re:

    Your funie!

     

    reply to this | link to this | view in thread ]

  28.  
    icon
    That Anonymous Coward (profile), Aug 27th, 2012 @ 4:39pm

    Re:

    A variety of ways, one of the more common being converting the plant material into an oil so that it can be mixed with more things.

    Xeni Jardin attended a dinner where they used pot in a multitude of ways preparing food.

    http://boingboing.net/2012/04/23/my-dinner-with-marijuana-chem.html

     

    reply to this | link to this | view in thread ]

  29.  
    icon
    Mike Masnick (profile), Aug 27th, 2012 @ 4:42pm

    Re:

    Are you sure? I just Googled for it and it doesn't exist. Hopefully your reportage is more accurate.


    It was a typo. I left out an i, which has now been fixed. It's not the end of the world. We make typos. Most people point them out, nicely, and we fix them.

    Some people aren't so nice.

    Either way, it wouldn't matter, because it was merely an example of how something could be a trademark. I could have just easily said "xkfjq;fj; Fuji Apples" and the point would have been just as valid.

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Bruce Partington, Aug 27th, 2012 @ 4:42pm

    Re: Re: Re: Re: Re: Re:

    ...Why?

    1) I didn't see you doing it.

    2) I needed some up-to-date data points for my longitudinal study of epistemic closure's correlation to male aggression in partisan news sites. The general level of male rage around here makes it necessary to use a strong signal so it can be distinguished from the ambient background.

    3) It was more respectful than accusing Masnick (with whom I am not on a first-name basis, unlike you) of writing while stoned.

    4) Logic test. (You passed.)

    HTH.

     

    reply to this | link to this | view in thread ]

  31.  
    icon
    Gwiz (profile), Aug 27th, 2012 @ 5:14pm

    Re: Re: Re: Re: Re: Re: Re:

    I needed some up-to-date data points for my longitudinal study of epistemic closure's correlation to male aggression in partisan news sites.

    Well fuck. There goes my idea for a "waste-of-taxpayer-money" research grant I was going to get rich with.

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Anonymous Coward, Aug 27th, 2012 @ 7:01pm

    Re: Re:

    The US has two possible means along the line you mention. There are plant patents under 35 USC 161, or Plant Variety Protection under Chapter 57 to Title 7 of the US Code. They are administered, repectively, by the USPTO (Department of Commerce) and the Plant Variety Protection Office (Department of Agriculture). The line of demarcation between these two is the means by which the plants are reproduced.

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Anonymous Coward, Aug 27th, 2012 @ 7:25pm

    Get out the Vote

    In Oregon, Washington and Colorado The legalization of marijuana will be up for a vote this fall.
    I hope it passes.Vote for it!

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    Pixelation, Aug 27th, 2012 @ 10:38pm

    Re:

    Uh, hahaha, um...I forgot, what were we talking about again?

     

    reply to this | link to this | view in thread ]

  35.  
    icon
    Niall (profile), Aug 28th, 2012 @ 4:52am

    Re:

    There's the damage to mental health and for younger long-term users, damage to brain function/IQ. Quite aside from any risks associated with smoking it...

     

    reply to this | link to this | view in thread ]

  36.  
    icon
    Wally (profile), Aug 28th, 2012 @ 5:37am

    Re: Re:

    This got my funny vote :-)

     

    reply to this | link to this | view in thread ]

  37.  
    icon
    Wally (profile), Aug 28th, 2012 @ 5:45am

    Re: Re:

    "Most people point them out, nicely, and we fix them."

    I do admit this about myself: Sometimes it is hard for me to be nice back when debating, and it's the only argument they can use against me....but I digress.

     

    reply to this | link to this | view in thread ]

  38.  
    identicon
    Anonymous Coward, Aug 28th, 2012 @ 9:52am

    Re: Re: Re:

    Merely as an aside, CAFC caselaw, as best I recall, long ago cast aside all notions of "morality" and the like in evaluating whether or not an invention may receive a patent. Hence, I am aware of no basis upon which an application for a plant patent can be denied that is addressed to a particular strain of marijuana. Of course, any plant invention must still meet all other requirements for patentability.

     

    reply to this | link to this | view in thread ]

  39.  
    identicon
    Marijuana Seeds, Nov 14th, 2013 @ 6:56pm

    ttrademark

    The myth of marijuana in the U.S. attests to just how easily the media can control our thoughts, and I am sure that there are many other topics that the media twists to get what they want.

     

    reply to this | link to this | view in thread ]


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