| Description of Mark | The mark consists of The identification of goods is indefinite and must be clarified to specify the particular types of "CBD and hemp derived products," e.g., "cosmetics" and "non-medicated skincare preparations" in Class 3, "dietary and nutritional supplements" and "medicated skincare preparations" in Class 5, "nut and seed-based snack bars" in Class 29, "granola-based snack bars" in Class 30, "fruit beverages" in Class 32, "electronic cigarette liquids, other than essential oils" in Class 34, etc.. See 37 C.F.R. §2.32(a)(6); TMEP §1402.01. Applicant may adopt the following identification, if accurate. The wording that appears in bold and/or italics below represents the suggested changes. Any wording that is crossed out represents matter that must be deleted from the identification. International Class 3: Cosmetics and non-medicated skincare preparations, all containing CBD solely derived from hemp with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent International Class 30: Granola-based snack bars containing CBD solely derived from hemp International Class 34: Electronic cigarette liquids, other than essential oils, containing CBD solely derived from hemp with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis Cannabidiol (CBD) is a nonpsychoactive constituent of the cannabis plant. Applicant's identified goods are broad enough to include products produced from "all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin" (subject to certain exceptions). 21 U.S.C. §802(16)(definition of "marihuana" - commonly referred to as "marijuana"). In order for an application to have a valid basis that could properly result in a registration, the use of the mark has to be lawful. See In re Pepcom Indus., Inc., 192 USPQ 400, 401 (TTAB 1976) Because use of the applied-for mark in connection with such goods was not lawful as of the filing date, applicant did not have a bona fide intent to lawfully use the applied-for mark in commerce in connection with such goods. See In re JJ206, LLC, 120 USPQ2d 1568, 1569 (TTAB 2016) ("where the identified goods are illegal under the federal Controlled Substances Act (CSA), the applicant cannot use its mark in lawful commerce, and 'it is a legal impossibility' for the applicant to have the requisite bona fide intent to use the mark."); see also In re Brown, 119 USPQ2d, 1351-1352; TMEP §907. On December 20, 2018, the CSA was amended to remove hemp from the definition of marijuana and specifically exclude "tetrahydrocannabinols in hemp (as defined under section 297A of the Agricultural Marketing Act of 1946)" from Schedule I, 21 U.S.C. §812(c)(17). The goods that feature cannabidiol did not potentially comply with applicable federal laws until that date. Because the identified goods that feature cannabidiol consist of or include items or activities that are still prohibited under the Controlled Substances Act, namely those containing cannabidiol derived from marijuana, the applicant did not have a valid basis for filing the application for such goods. Nevertheless, to the extent the applicant's goods will be derived solely from cannabis plants that meet the current statutory definition of hemp, the goods may presently be lawful. Therefore, in order to overcome this refusal, applicant must amend the identification of goods to specify that all cannabidiol-containing items are "solely derived from hemp with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis." Please see the complete requirement for an acceptable identification of goods below. |
