Cannabis Investment Report – Overview of Plant Variety Protection and Trademark Law

> = i cor > Qa LA Cannabis Investment Report | December 2017 fies other PVPA requirements may apply for and receive a certificate of plant variety protection issued by the U.S. Department of Agriculture (USDA). Such a certificate establishes a breeder's right, for a period of time and subject to certain exceptions, to exclude others from selling the variety, offering it for sale, reproducing it, importing or exporting it, or using it in producing a hybrid or different variety. A breeder's rights under the certificate last for 20 years (25 years in the case of a protected tree or vine) from the certificate’s issue date. It is not clear whether the USDA has issued any certificate of plant variety protection for a can- nabis variety. The USDA website provides a searchable database of certificates issued since February 2013, as well as a schedule of crop categories for which certificates have been issued. A search of these USDA materials indicated that no certificates for varieties of cannabis, marijuana or hemp have been issued. The PVPA defines “variety” as “a plant grouping within a single botanical taxon of the lowest known rank” with certain defining and distinguishing features. Given the disagreement among bota- nists regarding cannabis taxonomy noted in Chapter I, Cannabis Science 101, it may be challenging to demonstrate that a cannabis variety satisfies PVPA criteria for protection. Trademark Act A trademark is a word, name, symbol or device used by a person to identify and distinguish the person's goods or services from the goods and services of others and to indicate the source of the goods or ser- vices. Trademarks take many forms, including logos, slogans, symbols, colors and sounds. Under com- mon law and through registration under state and federal statutes, a trademark owner can be afforded certain legal protections against unauthorized use of the trademark by others. Trademark protection under federal law is provided primarily by the Trademark Act, also known as the Lanham Act, which provides for registration of trademarks with the USPTO. The holder of a federally registered trademark receives certain rights and protections under federal law, including the right to use the “®” symbol, evidence and nationwide notice of a claim of ownership, access to federal courts for dispute resolution, the ability to prevent importation of foreign goods that infringe on the trademark, and the right to recover certain statutory damages and attorneys’ fees. Generally, federal registration is the most comprehensive trademark protection available in the United States. Federal trademark registration requires “lawful” use of the trademark in commerce. Thus, trade- marks used to identify, distinguish or indicate the source of cannabis or related products or services that are illegal under federal law are not eligible for federal registration. However, federal registration is available for trademarks used in connection with federally legal cannabis-related products or services, such as a recipe for food intended to be infused with cannabis or a cannabis-related clothing line. Alternatives to federal trademark registration include protections available under common law and through registration under state trademark statutes. Common law protections vary across jurisdictions and generally extend only to geographical regions where a trademark has first been used in commerce. State trademark registration generally provides protection within the entire state but, like federal regis- tration, may not be available for trademarks used in connection with unlawful subject matter. 84 © 2017 Ackrell Capital, LLC | Member FINRA/SIPC HOUSE_OVERSIGHT_024720