“One toke over the line, Sweet Jesus, one toke over the line. Sittin’ downtown at the railway station, one toke over the line.” One Toke Over The Line, Brewer and Shipley
On a slow news day, word spread through the wire services that Jamen Shively, an ex-Microsofter, plans to launch a brand of marijuana in Colorado and Washington, the only two states that have legalized marijuana for recreational use. He is looking for “seed money” for his new venture, and hopes to source his product from Mexico. Eighteen states and the District of Columbia have legalized marijuana for medicinal use. So Shively, who left Microsoft in 2009, sees a buoyant market for his brand, Diego Pellicer, in both the recreational and medical markets.
Having brand names, logos, jingles, and slogans for marijuana products would represent quite a change from the current underground marketplace for pot. Although marijuana reportedly accounts for billions of dollars in sales that are not subject to federal or state taxes, efforts to bring the industry out of the shadows and into the mainstream have consistently met strong opposition from a host of sources. One can only speculate how the alchohol industry might feel about having to compete with marijuana for recreational drug dollars. Yet. the fast food industry would presumably welcome a national presence for branded pot, which would keep business humming at late night drive through windows across the country. Happy Meals indeed!
How would the USPTO feel about getting applications to register trademarks for pot? The Lanham Act prohibits the registration of “immoral or scandalous” matter, such as vulgar double entendres. (Think: a Rooster-shaped lollipops with a brand that combines a barnyard name for the male chicken with the word “sucker”). That restriction focuses on the mark, not necessarily the goods. There is nothing immoral or scandalous about Shively’s proposed name, Diego Pellicer. But despite legalization and decriminalization of pot in pockets across the land, marijuana remains illegal under Federal law. And a few years ago, the Trademark Office closed its doors to applications for marijuana marks after briefly flirting with the idea of allowing applications for medical marijuana brands.
So what is an enterprising pot grower with a Microsoft background supposed to do to protect his fledgling brand? He can look to the common law, which protects brands even when they haven’t received a federal registration. With marijuana legal in Washington State, he might find a receptive (and relaxed) jury if called on to police his marijuana mark against an infringer. Think of it, a marijuana company “policing” something–only in the word of trademarks!
QUOTE OF THE DAY: “Some of my finest hours have been spent on my back veranda, smoking hemp and observing as far as my eye can see.” Thomas Jefferson.
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