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Delta-8 THC offers a pathway to trademark protection


A recent federal appeals court decision shed light on the legal status of delta-8 tetrahydrocannabinol (“delta-8 THC”) and its implications for cannabis brand owners. The United States Court of Appeals for the Ninth Circuit has ruled that delta-8 THC fully meets the definition of “hemp” under the Farm Act of 2018 and is therefore lawful, despite its psychoactive properties. . Cannabis brands have long struggled to obtain adequate federal trademark protection, as the Lanham Act only extends trademark protection to products lawfully marketed in the United States. The Court’s decision potentially opens a new avenue for cannabis brand owners to seek federal trademark protection.

In AK Futures LLC V. Boyd Street Distro, LLC, the Ninth Circuit upheld the grant of a preliminary injunction against a defendant accused of selling counterfeit e-cigarettes and vaping products containing delta-8 THC. AK Futures LLC, a maker of electronic cigarettes and vaping products, has filed a trademark and copyright infringement lawsuit against Boyd Street Distro, LLC, a Los Angeles smoking products wholesaler. AK Futures manufactures electronic cigarettes and vaping products containing delta-8 THC under the CAKE brand. Boyd Street apparently sold counterfeit versions that included both AK Futures’ CAKE trademark and its copyrighted logo. AK Futures sued for an injunction, which the district court granted.

Boyd Street appealed, arguing that the CAKE marks were not protectable marks because delta-8 THC is illegal under federal law. The United States Court of Appeals for the Ninth Circuit disagreed.

The Court decisively concluded that delta-8 THC products are not prohibited by federal law and therefore can support a valid trademark. The Farm Act of 2018 amended the definition of “hemp” in the Controlled Substances Act to exempt cannabis plants and “all derivatives, extracts, cannabinoids, isomers, acids, salts and salts of isomers” with a concentration of delta-9 THC of 0.3% or less on a dry weight basis. Similarly, the DEA’s definition of “marijuana extract” only includes cannabinoids containing more than 0.3% delta-9 THC. If AK Futures’ products met this standard, they were legal.

The Court’s decision offers a few key points:

  • Delta-9 Still Doesn’t Fly: Traditional cannabis products containing delta-9 THC still do not qualify for federal trademark protection, regardless of state legalization programs;
  • It’s a big universe: Products containing legal cannabinoids and cannabis accessories offer cannabis brands the most direct route to obtaining federal trademark protection;
  • Consider the alternative: Cannabis brands should consider other forms of protection, such as copyright registration for any unique logo or label; and
  • Compliance is key: The Court noted that if AK Futures’ products do not contain the levels of cannabinoids they claim on the labels, they may not ultimately deserve brand protection.

This decision suggests a path to protection. But for now, it’s still unclear if the US Patent and Trademark Office will adapt quickly.



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