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, <a href=”http://www.amazon.com/gp/product/0195399781/ref=as_li_tf_tl?ie=UTF8&camp=1789&creative=9325&creativeASIN=0195399781&linkCode=as2&tag=techdirtcom-20″” target=”_blank”>The Knockoff Economy: How Imitation Sparks Innovation is now available for pre-order…
Filed Under: marijuana, plant varieties, pot, trademark
Comments on “Can You Trademark Your Pot?”
I’ve always wondered, how is medical marijuana administered exactly?
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To the patient:
Take lit doobie to mouth and inhale.
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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
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Uh, hahaha, um…I forgot, what were we talking about again?
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This got my funny vote 🙂
The other question is just as important:
Can you PATENT your home grown genetically modified marijuana strain, ala Monsanto?
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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
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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.
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.
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Um, yes, it does. http://www.rainierfruit.com/products/variety.html?varietyid=4
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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.
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Perhaps it was a typo?
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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).
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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?
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…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.
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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.
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So what we have learned here is mom rushed your potty training… got it.
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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.
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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?
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I hope when I’m as old as you are, I won’t be nearly as needlessly pedantic.
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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.
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Your funie!
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I couldn’t find it in the USPTO database, but it could be a common law trademark.
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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.
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“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.
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.
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“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.
How much you want to bet they’re recycling some of the stuff police and customs catch to save costs.
it would seem like this creates another “pure” market to study
Pure awesome.
We have to smoke the answer out as soon as possible!!!!
and what illegal behavior and adverse health consequences are there?
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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.
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And yet there was an energy drink called cocaine.
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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…
As if we needed another reason why America deserves to die and burn in the hell of its own making.
There a ton of different names.I usually get strains of White Russian, AK-47, Super Lemon Haze, Sour Diesel, Blueberry……There are more.
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!
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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.
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.
Trademark MJ
Hmmm, patent on cannabis seeds is funy shit 😉
Trademark
patent cannabis lol 😀