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The Trademark Trial and Appeal Board has upheld the decision of a trademark examiner at the U.S. Trademark Office that owners of cannabis businesses cannot obtain federal trademark protection on marks used for marijuana sales.

Washington resident Morgan Brown, who operates Herbal Access, a brick-and-mortar store in Port Hadlock-Irondale and an online dispensary of the same name, was denied his application seeking to trademark his business name because of marijuana’s illegal federal status.

“We have consistently held that, to qualify for a federal service mark registration, the use of a mark in commerce must be ‘lawful,’” the TTAB opinion said. “Thus, any goods or services for which the mark is used must not be illegal under federal law.”

In a brief outlining the decision, Ashe Puri, an associate with Fox Rothschild law firm, suggests that cannabusiness owners seeking trademark protections “may be able to obtain state law protection,” in states with legal markets, but those protections are not as “far-reaching” as federal marks.

“The decision highlights the conflict that exists for businesses that comply with state law requirements but are unable to receive any federal legal protection, whether in terms of intellectual property rights or access to federal bankruptcy courts, among other things,” Puri wrote.

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