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Key facts you need to know when you seek trademark protection for your Cannabis brand
The sales markets for cannabis products are growing steadily. This makes it even more important for companies to protect their cannabis brands at an early stage. In this respect, especially in the European market the following should be considered:
The registration of cannabis trademarks is basically allowed in Germany and the EU. However, it should always be ensured that the trademark to be protected is not contrary to public policy or morality of an EU member state, as such a violation would lead to an absolute ground for refusal under EU law. As case law shows, this is especially assumed if a trademark creates the impression that the use of cannabis as an illegal drug is being glorified. In the past, various trademark applications were rejected for this reason.
An example is the case of Cannabis Store Amsterdam. The European General Court (EGC) in Luxembourg rejected the trademark on the grounds of being contrary to public policy and morality. This was because the word/figurative mark applied for showed cannabis leaves together with the words "Cannabis Store Amsterdam", which, according to the Court, would indicate the use of cannabis as a psychoactive drug.
A similar line of argument was made in the case of Bavaria Weed, a trademark registered for medicinal cannabis. The word/figurative mark shows the image of a lion holding a cannabis leaf in combination with the term "Bavaria Weed". The Court held that the term "weed" in connection with products of a therapeutic nature could create the impression that the consumption or production of cannabis as an illegal drug was tolerated or even promoted. Therefore, it rejected the trademark application for being contrary to public policy and morality.
For the same reason, the registration of the trademark Well Weed was refused because the word "weed" would be generally associated with cannabis as a psychoactive drug. Although the applicant invoked the case law of the European Court of Justice (ECJ), according to which CBD and its derivatives may be freely marketed within the EU without infringing the public order, this did not change the view of the Board of Appeal of the European Union Intellectual Property Office (EUIPO). This is because trademark registration is primarily about the trademark itself, not so much about the product. If the trademark itself gives the impression of referring to the consumption of cannabis as an illegal substance, its registration regularly fails due to the violation of public order as an absolute ground for refusal. Even if the product to be marketed under the trademark may be legally traded on the European market.
Despite the growing tolerance for cannabis use in large parts of the European Union, case law is still rather conservative when it comes to the protection of cannabis trademarks. Terms such as weed, hemp, pot, marijuana, cannabis, grass or hash, which are widely associated with the use of cannabis as a psychoactive drug, remain problematic and should therefore be avoided when it comes to the registration of cannabis trademarks. It is generally recommended to seek legal advice before applying for the registration of a cannabis trademark, especially because of the high sensitivity in dealing with this topic.