The United States Patent and Trademark Office (USPTO) took concrete steps to reduce transaction costs to consumers purchasing medical marijuana products by creating a category for medical marijuana products within International Class 5. However, that decision was rescinded quickly. Then, the USPTO overreached its statutory authority by ordering a wholesale prohibition of federal registration for medical marijuana trademarks. This Comment argues that because the USPTO overreached its statutory authority in prohibiting federal registration for medical marijuana trademarks, it should reinstate the category for medical marijuana products and allow medical marijuana producers to seek federal registration of their trademarks. Part I provides an overview of the new category created for registering medical marijuana and its subsequent revocation. Part II is a statutory analysis of the Lanham Act and regulations to illustrate that the Lanham Act does not preclude registration of medical marijuana marks. It will also illustrate how the USPTO overreached its statutory authority by preventing registration of any by analyzing the inconsistencies in how the term “lawful” has been interpreted by the Trademark Trial and Appeal Board and federal circuit courts. Finally, Part IV will address the alternatives to federal trademark registration and argue that the available alternatives are not adequate in the face of the rapid expansion of medical marijuana laws and policy throughout the country.
Stephanie Gambino, Exceeding Its Authority: The USPTO Prevents Federal Registration of Medical Marijuana Trademarks, 40 SEATTLE U. L. REV. 1417 (2017).