Trademark Trial and Appeal Board refuses trademark applications for Marijuana Vaporizers

Recently, the Trademark Trial and Appeal Board (“TTAB”) refused trademark applications for the terms “POWERED BY JUJU” and “JUJU JOINTS.”[1] The Applicant sought to register both marks for use in connection with vaporizing devices for cannabis or marijuana.[2] The TTAB found that these marks could not be registered because the use of a mark in commerce must be lawful.[3] Since the Applicant’s marks were intended to be used and were used on goods that are illegal under the federal Controlled Substances Act (“CSA”), the TTAB reasoned that the Applicant could not lawfully use its marks in commerce.[4] The CSA provides “equipment primarily intended or designed for use in ingesting, inhaling, or otherwise introducing cannabis or marijuana into the human body constitutes unlawful drug paraphernalia.”[5]

In response, the Applicant argued that it only does business in states where marijuana is legal and which comply with federal directives such as the Cole Memo.[6] However, the TTAB rejected Applicant’s arguments finding that “‘the fact that the provision of a product or service may be lawful within a state is irrelevant to the questions of federal registration when it is unlawful under federal law.’”[7] The Cole Memo referred to by Applicant is a U.S. Department of Justice memorandum which addressed the enactment of medical marijuana laws in certain states, affirmed the illegality of marijuana under the CSA and set forth federal enforcement policy guidance.[8] One such enforcement policy under the Cole Memo is “‘[p]reventing the diversion of marijuana from states where it is legal under state law in some form to other states.’”[9] The TTAB rejected Applicant’s reliance upon the Cole Memo noting that even if the states where Applicant does business comply with its guidance on enforcement, the Cole Memo does not override the CSA or support the notion that marijuana is legal.[10]

The TTAB also rejected Applicant’s attempt to argue that the marijuana industry is similar to the alcohol and tobacco industry and that its marks should be eligible for registration because there are acceptable medicinal uses for marijuana.[11] The TTAB noted that alcohol and tobacco do not violate the CSA and thus any comparison to those industries is irrelevant.[12] The TTAB’s ruling appears to put to rest any uncertainty as to whether state marijuana laws provide support for a federal trademark registration based upon marijuana related goods and/or services.

Please contact our office if you have any questions regarding the information in this article.

Daniel Devine, Esq.
Santucci Priore, P.L.
Shareholder

[1] See, In re JJ206, LLC, dba Juju Joints, Serial Nos. 86474701 & 86236122 (TTAB Oct. 27, 2016), available at http://ttabvue.uspto.gov/ttabvue/v?pno=86236122&pty=EXA&eno=14
[2] Id.
[3] Id.
[4] Id.
[5] Id. (internal citations omitted)
[6] Id.
[7] Id. (internal citations omitted)
[8] Id.
[9] Id. (internal citations omitted)
[10] Id.
[11] Id.
[12] Id.