Happy 420!! What did I do for to celebrate? I worked on a pro bono matter I took on to fight against a "hot button" issue for me: trademark bullying. The matter involves the cannabis industry and so it was the PERFECT way for me to use my advocacy skills in a way that honors both the plant and intellectual property today.
You all know we are proponents of intellectual property rights in the cannabis industry! But, what we advocate protecting are "inventions" and "brands" in their true sense--NEW and NON-OBVIOUS inventions and marks that truly serve to identify THE SOURCE of the goods or services.
Because trademark and patent protection for cannabis are very new in an industry that has been around forever, there are so many ideas, inventions, words and phrases that are a collective part of the industry AS A WHOLE. They belong to EVERYONE and NO ONE at this point. Because trademark and patent protection weren't previously available, many of these ideas and phrases appear to be free and clear for patent or trademark protection since there are no previously filed patents or trademarks that would block an applicant from possibly obtaining them as their own.
However, a common phrase or widely used message is one the public would perceive the wording merely as conveying the ordinary meaning of the message, or enthusiasm for, affinity with, or endorsement of the message, and is not available for trademark protection because it cannot uniquely identify the trademark owner as the source.
Trying to grab an “invention” that is not new or widely used message as your own is not only wrong, but it hurts this industry so many have worked so hard and sacrificed so much to bring to life. And so today I spent part of my day putting together evidence and drafting a Letter of Protest to be filed with the United States Patent and Trademark Office to ask for refusal of a recently filed trademark application that attempts to grab a widely used message in the cannabis industry as a brand for the Applicant's cannabis goods and services.
Not legal advice and posted with permission from the client to raise awareness.