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Trademark Priority: First-in-time, first-in-right . . . but not always.
When two businesses offer the same or similar products or services under the same or confusingly similar mark, the first question is who has superior trademark rights. Superior rights go to the user with “priority,” a term of art in trademark law. In the U.S., with some exceptions, priority is generally determined by the first party to use a... read more2018 Farm Bill: Registering Trademarks & Distribution of Hemp Products
On December 20, 2018, President Trump signed the Agricultural Improvement Act of 2018 (“2018 Farm Bill”), which marked a monumental shift in federal policy towards cannabis. So, what changed? Significantly, the 2018 Farm Bill defines “hemp” as the Cannabis Sativa L. plant, any parts of the cannabis plant, and all derivatives therefrom, having a THC concentration of not more... read moreOverview: Likelihood of Confusion
Likelihood of consumer confusion is the touchstone of trademark law and determining whether there is infringement, which is the unauthorized use of a mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source or sponsorship of the goods and/or services. Whether there is a likelihood... read moreBrands vs. Company Names
Since there are different rules for trademarks and business names you must be aware of when you are referring to the brand versus the company/trade name. When using the name to refer to the company, the company name can and should be used as a proper noun, rather than as an adjective. You may also make the company name... read moreGuest Blog: The “Green Rush” to Register Cannabis Trademarks in Canada
Guest authors John H. Simpson & Shan Arora of Shift Law discuss the current landscape of cannabis trademark applications in Canada. On October 17, 2018, the sale of recreational cannabis became legal in Canada and the “green rush” to profit from the industry is on. For many months, industry players have been hurrying to stake claims to market share... read moreCBD Roundup: Updates at the USPTO, Rescheduling, & More
Evoke Law Persuades USPTO to Register Trademark for CBD from Hemp Products Mid-2017, the U.S. Patent and Trademark Office (USPTO) started emphatically refusing trademark registration for marks covering products containing CBD from industrial hemp. Previously, it seemed that so long as the applicant confirmed that the CBD was derived from industrial hemp that was internationally sourced and contained no... read moreNew Prop 65 Regulations Are Active!
As of August 30, 2018, California businesses must adhere to the new regulations relating to Prop 65 warnings. By way of background, The Safe Drinking Water and Toxic Enforcement Act of 1986 (a/k/a Prop 65) requires businesses to notify Californians about significant amounts of chemicals in the products they purchase, encounter in their homes or workplaces, or that are... read more3 Recalls, 1 Month – Be Prepared!
For anyone in the California cannabis business, July 1, 2018 marked the beginning of a new era of cannabis regulations. In addition to more stringent packaging and labeling requirements, cannabis flower and cannabis products must also now be tested for a second more expansive list of pesticides, as well as residual solvents and foreign materials. While all testing labs... read moreGuest Blog: Why You Need (or Should Update) Terms of Service & Privacy Policies
Guest author Alexandra Harmer of Ascenda Law Group discusses the importance of having terms of service and privacy policies for businesses operating in the digital world. If you receive email, you have likely received many of the seemingly endless notices notifying you that [insert Vendor name here] has updated its website terms of service and privacy policy in the wake of... read moreInternational Trademark Protection
Trademark protection outside of the U.S. can be important for a number of reasons. You should at least consider filing for trademark protection internationally if your sales, distribution, and/ or manufacturing position is as follows: You conduct business in another country You plan conduct business in another country You manufacture, distribute, and/or advertise in another country A country of future... read moreTrademark Watch Services
If you don’t want to conduct a search for your company on the Internet and suddenly discover a competitor operating under a similar name, proactive enforcement efforts can provide peace of mind that the value of your company’s trademarks is being preserved. Moreover, it is the duty of a mark owner to enforce exclusive rights in a mark, or... read moreGuest Blog: Protecting Cannabis Strains with Plant Patents
In this post, guest author Jeremy Kapteyn, Ph.D., from Rose Law Group, discusses using plant patents to protect new & distinct strains. Evoke Law has also written about protecting strains: “Branding a Cannabis Strain: Don’t Reinvent the Wheel” in mg Magazine’s April/May 2018 special branding issue. Cannabis breeders, cultivators and others developing cannabis genetic resources are almost invariably surprised... read moreBranding a Cannabis Strain: Don’t Reinvent the Wheel
Originally published in the April/May 2018 edition of mg Magazine. Before you name a strain, you need to know the strain name and the brand name are not the same. A brand name or trademark does not communicate “what” the product is, but rather “who” is providing it, meaning, a trademark doesn’t tell you about a product, but instead... read moreCommon Trademark Refusals
While there are many reasons why applications may be refused for registration by the United States Patent and Trademark Office (USPTO), below is a summary of the most common issues raised by the Office: Identification of Goods/Services The most common rejection arises from the language used to describe an applicant’s goods and services. The USPTO requires a certain level... read moreRegistering a “DBA” in California
Consider that when your company is conducting business under a name that is different from the entity name registered with the Secretary of State, this name is considered your “doing business as” name, or “DBA.” Because selecting a strong brand name takes time and effort, businesses may choose to form its formal business entity under one name, but ultimately... read moreGuest Blog: Opportunities in Canada: Intellectual Property Protections
By: Christopher N. Hunter, Partner, Norton Rose Fulbright & Fahad Diwan, Articling Student, Norton Rose Fulbright The expected legalization of cannabis in Canada this summer presents unique opportunities for cannabis companies from Canada, the United States and abroad. Most importantly, cannabis companies can register trademarks in Canada that are expressly associated with cannabis. The Canadian Intellectual Property Office (CIPO), the... read moreImportance of Trademark Clearance
“Trademark clearance” is a process that identifies whether others are already using an identical or confusingly similar mark in connection with the same or related goods or services, and assesses the level of risk associated with use, registration, and enforcement of a mark. Comprehensive clearance is not as simple as searching for an identical mark on the United States... read moreGuest Blog: Insurance Challenges for Cannabis Businesses
As the cannabis industry grows and business challenges proliferate, there are a variety of legal issues that are increasingly of interest to cannabis operators. Evoke Law specializes in trademark protection and brand licensing for the cannabis industry, and also offers a wide range of consumer protection legal services, including packaging and labeling compliance, recall plans, and counseling to avoid... read moreBrand Valuation
At its essence, a brand is what makes your company your company and includes the quality, functionality, pricing, and packaging, of your products and services, trademarks, logos, slogans, color schemes, as well as all associated communications, such as advertising, marketing, promotion, and your website. Properly cultivated, your brand is an intangible asset with tremendous value, based on established goodwill... read moreCalifornia Trademarks Division Accepting Applications for Cannabis Goods & Services
It was initially announced that licensed California cannabis companies may file service mark applications to register marks for licensed cannabis-related services beginning January 1, 2018. But, in an unexpected shift in position, this changed on January 12. As of January 12, 2018, the California Secretary of State’s Office now accepts trademark applications for cannabis products (in addition to service mark applications). A state... read more