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New 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 released into the environment. Businesses are required to provide a “clear and reasonable” warning before knowingly and intentionally exposing anyone to a listed chemical. Prop 65 allows for private enforcement actions if it is brought “in the public interest.” This indefinite standard has notoriously been exploited by persons seeking attorneys’ fees and settlements rather than improving public safety. In particular, the cannabis industry has experienced its fair share of Prop 65 enforcement actions. For example, in May 2017, a single person sent approximately 700 60-day warning notices to dispensaries, alleging Prop 65 violations due to the presence of Prop-65 listed fungicides and insecticides in edible products. Failing to provide Prop 65 notices can result in penalties as high as $2,500 per violation per day. Due to this enforcement risk, many dispensaries and delivery services are requiring that all products have a Prop 65 warning, regardless of the type of product or if the product does not, in fact, contain any of the Prop 65 chemicals. However, Prop 65 does not apply to all cannabis business or products, therefore, it is essential to understand when (and if) Prop 65 applies, and how to comply. Prop 65’s warning requirements do not apply to: Businesses with less than 10 employees Products that do not...

3 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 adhere to the same set of regulations, there are no standardized methodologies for how labs test for cannabinoid concentration, composition, and contaminants. The lack of standardization is leading to inconsistent testing results and clearly presenting major problems for cannabis producers, evidenced by 3 voluntary product recalls announced within less than 1 month. On July 25th, The Bloom Brand voluntarily recalled a batch of cannabis products that contained Myclobutanil, a fungicide commonly found in food production. The Bloom Brand has not yet explained how the contaminated products made it past laboratory testing and into over 100 retail stores across California. Two days later on July 27, Lowell Herb Co., a producer of cannabis pre-rolls, voluntarily recalled a batch of products from 74 California dispensaries. Interestingly, the recalled product batch was initially cleared for sale after being approved by two different testing labs. However, two weeks after the batch was initially approved, results from a third test reversed the decision for failing to pass the state’s testing standards. The contaminant in question was not identified. On August 19, Venice Cookie Company initiated a voluntary recall of its cannabis-infused beverages due to a change in the passing grade of its compliance testing. The product batch initially passed testing in June, but a month...

Guest 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 the enactment of the General Data Protection Regulation (GDPR). You may even have had a good laugh at one of the many memes inspired by this phenomenon. But aside from perhaps having a good laugh and deleting more emails than normal, you might also be wondering if your website terms of service and/or privacy policy need an update, or if you need these documents at all. Facebook and Twitter have them, but does that mean every website needs them? Below are three reasons why you may need website terms of service and a privacy policy or should be updating the ones you currently have. Users Want Them At the heart of it, terms of service and privacy policies are contracts, which act as guides, explaining the relationship you have with another party. A contract tells each party what it can expect from the association, and, if well drafted, can even help resolve disputes without litigation. In the case of website terms of service and privacy policies, these documents tell the visitor what their rights are, and may include information about how to use the website, what the relevant policies are (like, return policies and, yes, privacy policies). Making your terms readily available means customers don’t have to spend time contacting...

International 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 interest is known for counterfeiting or intellectual property infringement Your products come into contact with nationals from another country, e.g., through tourism Owning trademark registrations outside of the U.S. may be the only means of enforcing trademark rights. Unlike the U.S., many countries recognize trademark rights based on the first-to-file, rather than the first-to-use. Additionally, most international countries do not require use of a mark prior to issuing a registration; meaning, you can effectively reserve your brand name for 3-5 years (depending on the country), when a registration could become vulnerable for non-use. Keep in mind, if you file international applications in most other countries within 6 months of the filing date of a U.S. application, your international applications may obtain the filing date of the U.S. application for priority. This is because the U.S. is party to the Paris Convention treaty, which allows applicants to obtain their U.S. filing date as the priority date in many foreign countries that are also parties to the Paris treaty. There are two main ways to apply to register a trademark and obtain international protection: (1) filing an application through the World Intellectual Property Office (WIPO), aka “Madrid system,” based on a prior-filed U.S. application/registration, or (2) filing a “national application” directly through a country’s trademark office. A third...

Trademark 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 jeopardize the enforceability of the mark in the future. Unchallenged third-party uses of a trademark weakens the strength of your company’s mark as a source identifier. A trademark watch service is an effective monitoring tool to efficiently identify potentially infringing adoption of confusingly similar marks. Evoke Law partners with Corsearch, a leading vendor of trademark clearance and protection services, to offer a wide range of watch services that fits a wide-variety of business needs. Below are descriptions of the most commonly utilized watch services: Domain Name Watch: A Domain Name Watch monitors registrations of standard top-level domain names (e.g., .com, .net, .org, .info) that include the exact mark, as well as other similar variations to catch potential typo-squatters. For example, if someone tried to register www.evokelegal.com, the watch service would alert us to this activity. Purchasing a domain is typically one of the first actions a business takes when it decides to proceed with a chosen brand name, and this watch provides somewhat of an “early warning system.” Expanded gTLD Watch: An Expanded gTLD Watch has all the capabilities of the Domain Name Watch, but also monitors registrations of generic top level domains (gTLDs) and country code top level domains (ccTLDs) for potential infringement. Using the above example, the Expanded...

Guest 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 to learn that cannabis plants are protectable under U.S. patent laws, notwithstanding their illegal status under the Controlled Substances Act (CSA). While the interplay between the CSA and federal trademark laws effectively prohibits federal registration of marks covering goods and services directly related to cannabis products, since registration requires use in commerce, which is unlawful under the CSA, the patent laws have no such use requirement. Thus, the CSA does not preclude the availability of patent protection for cannabis-related inventions, including cannabis plants themselves. Not only can cannabis plants be patented, but they are eligible for two different types of protection: utility patents and plant patents. This article focuses on plant patent protection and provides practical insights into how plant patents can be commercially valuable to cannabis breeders and cultivators. Plant Patent Eligibility Requirements 1. Asexual Propagation A key element of eligibility for plant patent protection is the ability for the plant to be asexually propagated (i.e., multiplied without using seeds). This includes any non-seed methods of propagation, such as by rooted cuttings (a propagation method routinely used for cannabis), as well as tissue culture propagation, which is of increasing interest in the industry. 2. “Distinct” & “New” The other key elements of plant patent eligibility are that the subject...