In or Out – Trademarks for Recreational Marijuana

Recreational marijuana sales, still illegal under U.S. Federal law, cannot be protected by Federal Trademarks.

The Federal Government, with a blind eye to the legality of recreational marijuana sales and use in many states, refuses to recognize any legal sales or protect the branding of any such sales by registering associated trademarks. (But they will accept the tax revenue.) At the same time those involved in the legal sale of marijuana products, unable to file for trademarks, are also increasingly the subject of trademark infringement suits. Such is the case of the recently filed Trans-High (High Times Magazine) v. Reimers, et al. case of Eastern Washington. 2:14-cv-00279 (E.D. WA. Aug. 25, 2014).

In the complaint, the publishers of High Times Magazine claim the defendants’ operation of a legal marijuana vendor doing business as High Time Station infringes their registered trademarks. Legitimacy of the complaint aside, it needs to be acknowledged that the plaintiff is seeking to enforce rights against defendants that are excluded from the system. This degree of inequality and unfair protection is something that will eventually be acknowledged. With the current “corporations are people” position of the law (right or wrong) an equal protection argument seems ripe. Why should a company (or person) be subject to the protections of a law (trademark) when they are denied access to that same law?
As the economy of legal recreational marijuana sales grows, expect the trademark system to quickly reverse course and allow the registration of associated trademarks. Also expect there to be a growing number of Plant Variety Protection (PVP) filings as people begin to legitimize the protections of their strains such as “Purple Diesel Bus” and “Brazilian Brain Bomb.”

A brave new world to be sure.

Complaint: Trans-High v. Reimers, et al. case of Eastern Washington. 2:14-cv-00279 (E.D. WA. Aug. 25, 2014).

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