Entrepreneurship and Legal Uncertainty: Unexpected Federal Trademark Registrations for Marijuana Derivatives

E-ISSN： 1744-1714|55|1|117-166

ISSN： 0002-7766

Source： AMERICAN BUSINESS LAW JOURNAL, Vol.55, Iss.1, 2018-03, pp. : 117-166

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Abstract

Though several states have legalized marijuana use, the drug remains illegal under federal law. Not surprisingly, the United States Patent and Trademark Office (USPTO) refuses to register trademarks related to marijuana because of the federal prohibition. What is surprising, though, is the willingness to grant trademarks for cannabidiol (CBD), a marijuana derivative that is likewise expressly illegal under federal drug laws. This article explains why the USPTO's divergent treatment of trademark applications for CBD and marijuana products is legally incoherent. Additionally, when viewed from an entrepreneurial perspective, this phenomenon exemplifies how legal uncertainty breeds entrepreneurial opportunity. Specifically, the article argues that the evolving regulatory landscape for CBD and marijuana products has been and continues to be ripe for legal strategists and innovative entrepreneurs to combine forces to create competitive advantage in the emerging marijuana industry.