Beware Ornamental Cannabis “Trademark Use”

The notion of ornamental trademark use is one that many cannabis clients are initially unaware of when seeking to protect their brands. This is unfortunate, because it’s an important issue to understand in the cannabis industry, where the only federal trademark protection we can obtain is for ancillary goods and services. (See here for the limitations of federal trademark protection in the cannabis industry.) The issue of ornamental use comes up frequently in the context of trademarks for apparel.

The United States Patent and Trademark Office (USPTO) may reject a trademark application if the specimen indicates that the use of the mark is merely ornamental or a decorative feature on the goods and does not function as a trademark to indicate the source of the goods. Here is an example of ornamental use provided by the USPTO:

“[A] slogan prominently displayed on the front of a t-shirt may be considered merely ornamental use and not trademark use. That is, most purchasers of the t-shirts would not automatically think the slogan identified the source of the goods but would view the slogan only as a decoration on the goods.”

Of course, not everything displayed on the front of a t-shirt would

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