Living in Western Massachusetts has its perks: gorgeous scenery, rich history, high culture up the wazoo, and now . . . legal weed! As you know, the people of the Commonwealth fired it up last year and voted to legalize marijuana, so now it’s perfectly legal for folks to own and grow their own kush. We heard all the hazy arguments we’ve been hearing for decades, “gateway drug” this, “more study is needed” that, and “dangerous to children” the other thing. And we Just Said Yes!
So it’s been a couple months now and nothing’s really changed that much. It is frustrating that Massachusetts legislators, most of whom lacked the courage or intelligence to support the legalization initiative, are kicking cans down the road in terms of laws and regulations for retail sales and commercial cultivation. They’re delaying these things like petulant children and will probably need to told by a court to get on the good foot, do their jobs, and put together a workable construct for the reefer market. It’s madness! There’s a shitload of tax revenue to be earned.
Legalization has brought obvious “improvements” to everyday life for those who are so inclined: increased giggling and Twinkie consumption, decreased paranoia, productivity, lives ruined by overzealous law enforcement and clueless courts, etc. As expected, the sky has not fallen, but there has been significant increased interest in baking and gardening.
Prior to the legalization I hadn’t smoked much in decades, owing to a general aversion to feeling languid and stupid. But I will admit to some recent puffage and cookie consumption, for research purposes, all very legal and in moderation, and can report, to put it bluntly, that it can be quite lovely, especially the Sativa strain that allows you to continue to function more or less as a human being. It’s kind of not that big of a deal.
The bigger bong-hit for me is that I’m getting calls from entrepreneurial types looking to register pot-related trademarks. The green rush is on!
Trademark law, as you should know, protects commercial names, logos, and the like. The law basically says you can’t use a name or logo if there’s a likelihood that it will cause confusion with somebody else’s established business. Sounds simple, but it’s deceptively complicated, nuanced, and tricky. Zig-Zaggy! And sometimes silly and stupid. And with legalized weed, we’ve got a huge established subterranean industry that suddenly gets to play by the rules. And one of those rules is trademark law.
What’s going on with the doobie biz is much like what’s been happening in the micro-distillery and micro-brewery industries over the past decade: business is exploding and everybody who’s producing and selling wants to protect their snappy names and logos so they can stand out in the marketplace. These days, booze and beer are the most dynamic segments of the trademark world, and ganja looks like it’s gonna be nuts, too. Except . . .
The United States Patent and Trademark Office is refusing to register any trademarks that involve the cultivation or consuming of wacky tobaccy. Why? Because marijuana is still illegal under the federal Controlled Substances Act. Never mind that hemp is now legal, either for medical and/or personal use, in at least 28 states. Never mind that the Feds aren’t, at least for now, trying to ram these antiquated, destructive dumbstick laws down anybody’s throat in these states, or anywhere else.
And the PTO is being pretty nasty about it, too. If a PTO examiner thinks that an application might involve weed (even if it isn’t mentioned in the application), a second-level inquiry is made, parsing words in the mark for meaning and looking for clues in the logo. If that comes up dry, the examiner will make the applicant provide a sworn statement that the mark won’t be used to violate the Controlled Substances Act.
This is all weird, ominous and troubling. It feels like a crusade, and a pointless one at that. And it’s all simply PTO policy that’s not supported by statute or even court precedent. It’s at least as silly as the PTO’s soon-to-be-overturned practice of rejecting marks found to be “tasteless” or “offensive” (we’re awaiting the Supreme Court decision in the case involving the PTO’s rejection, on “offensiveness” grounds, of a trademark application by the Asian-American rock group The Slants).
It’s as if the PTO, in its frantic and misdirected zeal to protect the public weal, has forgotten what it’s there for: to protect consumers and businesses by establishing order in the marketplace by protecting brand names. Which it’s not doing by flatly refusing to register marks for goods and services that are perfectly legal in more than half the states in the union.
Don’t bogart those trademarks, my friend.
Paul Rapp is an IP attorney and Berkshire anti-socialite who won’t rub in how much better Bryan Ferry was on the Siren tour in 1975.
Updated: Missing “weed” added, paragraph six.