Precedential No. 16: TTAB Affirms Refusal of PHARMACANN for Scientific Marijuana Services and products Because of Illegality beneath CSA
Visitor publish via John Welch, lawyer at Wolf Greenfield
USA June 19 2017
The Board affirmed refusals to sign up PHARMACANN and PHARMACANNIS for “Retail retailer services and products that includes scientific marijuana” and for “Doling out of prescription drugs that includes scientific marijuana” at the floor that applicant lacked a bona fide intent to make use of the marks in trade since the recited services and products are prohibited via a federal statute and can’t be in lawful use. Even though Congress has forbidden the Division of Justice from expending any finances to stop any state that has legalized scientific marijuana from imposing its personal regulations, that prohibition is transient and the regulation may well be modified at any time. In re PharmaCann LLC, Serial Nos. 86520135 and 86520138 (June 16, 2017) [precedential] (Opinion via Pass judgement on Larkin).
To ensure that a mark to qualify for registration, using the mark in trade will have to be “lawful.” In re JJ206, LLC, 120 USPQ2d 1568, 1569 (TTAB 2016). If the products/services and products are unlawful beneath federal regulation “the applicant can’t use its mark in lawful trade, and this is a felony impossibility for the applicant to have the needful bona fide intent to make use of the mark.” Ibid.. The Analyzing Lawyer maintained that the programs at factor right here contain in step with se violations of federal regulation since the doling out of marijuana is illegitimate beneath the federal Managed Components Act (“CSA”), 21 U.S.C. §§ 801 et seq. [The CSA uses the spelling “marihuana.”]
Applicant put forth two main arguments: first, that the Departments of Justice has introduced [within the so-called “Cole Memorandum“] that it could no longer prosecute caregivers for offering scientific marijuana or people for the use of scientific marijuana, as long as the “movements are in transparent and unambiguous compliance with present state regulations offering for the scientific use of marijuana;” and 2nd that Congress “has taken the similar place because the Division of Justice,” in different Appropriations Acts, via prohibiting the Division of Justice from expending finances to stop states that experience legalized scientific marijuana (together with Applicant’s house state of Illinois) from imposing their very own state regulations.
Applicant’s first argument, the Board identified, “is foreclosed via our resolution in JJ206, during which we ‘reject[ed] Applicant’s argument that its use and meant use of the mark are lawful in accordance with the [Cole] memorandum.’” 120 USPQ2d at 1571. There the Board held that the Cole Memorandum via its phrases used to be “meant most effective ‘as a information to the workout of investigative and prosecutorial discretion’ and particularly supply[d] that ‘[n]both the steerage herein nor any state or native regulation supplies a protection to a contravention of federal regulation, together with any civil or legal violation of the CSA.’” Identification. n.18 (citation ignored). The Board then dominated that the conclusions reached in JJ206 relating to leisure marijuana carried out similarly to scientific marijuana. “In each contexts, the Cole Memorandum lacks the pressure of regulation and “does no longer and can’t override the CSA.” Identification.
Applicant’s 2nd argument, albeit novel, used to be similarly unsuccessful. The Board noticed that during United States v. McIntosh, 833 F.3d 1163, 1169-70 (ninth Cir. 2016), the USA Court docket of Appeals for the 9th Circuit made up our minds “whether or not legal defendants might steer clear of prosecution for more than a few federal marijuana offenses at the foundation of a congressional appropriations rider [sometimes called the Rohrabacher-Farr Amendment] that prohibits the USA Division of Justice from spending finances to stop states’ implementation of their very own scientific marijuana regulations.”
The court docket in the end concluded that the solution used to be “sure” if “their habits used to be totally approved via state regulation, in which we imply that they complied with all related prerequisites imposed via state regulation at the use, distribution, ownership, and cultivation of scientific marijuana.” Identification. at 1179. In doing so, then again, the court docket additionally concluded that the Appropriations Acts and the Rohrabacher-Farr Modification didn’t make scientific marijuana felony beneath the CSA.
The Board discovered the court docket’s reasoning to be persuasive: even supposing the Division of Justice is recently prohibited from spending finances for prosecution of those that are in compliance with state regulation, Congress may just trade its thoughts the next day to come. The court docket additional famous: “Additionally, a brand new president might be elected quickly, and a brand new management may just shift enforcement priorities to position larger emphasis on prosecuting marijuana offenses.” In any tournament, the CSA remains to be the regulation.
Nor does any state regulation “legalize” ownership, distribution, or manufacture of marijuana. Underneath the Supremacy Clause of the Charter, state regulations can’t allow what federal regulation prohibits. U.S. Const. artwork VI, cl. 2. Thus, whilst the CSA stays in impact, states can’t in fact authorize the manufacture, distribution, or ownership of marijuana Such task stays prohibited via federal regulation. United States v. McIntosh at 1180 n.five
The Board noticed that there could also be enhance in Congress for reclassification of scientific marijuana beneath the CSA to a standing that will make its ownership, distribution, and doling out lawful beneath federal regulation. Alternatively, that isn’t the regulation as of the date of its resolution.
We will have to decide the eligibility of marijuana-related marks for federal registration via connection with the CSA as it’s written, no longer because it could be enforced at any time limit via any specific Justice Division. The CSA in its present shape makes Applicant’s meant makes use of of its marks illegal, and its marks are thus ineligible for federal registration.
And so the Board affirmed the refusals to sign up.
Concerning the creator:
John Welch, lawyer at Wolf Greenfield, has represented purchasers in ratings of patent, trademark, copyright, unfair pageant, and area title complaints around the nation, and has treated masses of opposition and cancellation complaints prior to the Trademark Trial and Attraction Board (TTAB) of america Patent and Trademark Place of job.
He’s chargeable for the world trademark portfolios of quite a lot of primary firms in such various fields as eating place services and products, meals processing equipment, and laptop hardware and instrument. John has bought a large number of application and design patents for purchasers in a lot of industries, corresponding to lighting, electric instrumentation, ceramic candle holders, meals processing equipment, and kitchen utensils.