PATENT OFFICE RAISES HIGH HOPES, THEN SNUFFS THEM OUT

Short-Lived Trademark Category for Marijuana Is Nipped in the
Bud

For three months until last week, marijuana dealers had something they
could only dream of before: the apparent stamp of approval of a
federal agency.

On April 1, the U.S. Patent and Trademark Office created a new
trademark category: "Processed plant matter for medicinal purposes,
namely medical marijuana." The patent office, part of the Department
of Commerce, posted the new category on its website.

The patent-office change set off a land rush by pot dealers in the 14
states where laws permit medical-marijuana sales. Some staked claims
on rights to long-used names like Maui Wowie and Chronic. Others
applied to trademark business names such as Budtrader and Pot-N. Two
companies applied to trademark psychoactive sodas named Keef Cola and
Canna Cola.

"It looked like a positive step to me. We don't have many steps by the
federal government legitimizing medical cannabis," said Steve
DeAngelo, executive director of the Harborside Health Center medical
marijuana dispensary in Oakland, Calif., who hired an
intellectual-property lawyer to trademark his company name before the
patent office created the new trademark category.

But last week the patent office snuffed out the promise of federal
recognition. On Tuesday, after questions about the new pot-trademark
category from a Wall Street Journal reporter, a patent-office
spokesman said the office planned to remove the new pot classification
by week's end, and the category is now off the website.

The spokesman, Peter Pappas, said the office's lawyers were "aware" of
the category weeks ago. "It raises examination issues," Mr. Pappas
said. "It was a mistake and we have removed it."

One key issue: Selling pot is a federal crime, even though some states
have laws allowing it.

Mr. Pappas said the office will go back to its pre-April policy of
accepting pot-trademark applications without providing a specific pot
category. But that's back to square one: The office has never actually
granted a pot trademark, the spokesman said, adding it's "highly
unlikely" that it would do so in the future.

Marijuana dealers, their appetites whetted by the three months of
hope, said they haven't given up their desire for federal recognition.
Scott Ridell, a brand-development consultant for Panatella Brands, a
Colorado pot-grower consortium, said his clients are still "moving
forward" with branding efforts and hope the patent office will grant
trademarks.

Mr. DeAngelo says he, too, is hopeful. He says Harborside is still
aiming to get several trademarks and intends to "vigorously pursue
those claims until we are awarded full protection status for our
intellectual property."

The episode is the latest twist in the nation's rethinking of
marijuana policy.

Over the past two years, the federal government has signaled a new
tolerance of marijuana. Attorney General Eric Holder last year
instructed federal prosecutors not to target dealers who comply with
state med-pot laws.

So when pot entrepreneurs noticed the new April 1 category, they saw
the opportunity to file pot trademarks as the latest step in the march
toward legitimacy.

In June, Scott Van Rixel, a New Mexico chocolatier, applied for a
trademark for "Bhang, the original cannabis chocolate," which he plans
to sell this month in med-pot clubs in California and Colorado.

Mr. Van Rixel said he plans to continue pursuing the Bhang trademark.
But instead of seeking a trademark for a product billed as a
medical-marijuana item, he wants a trademark for a chocolate product
that just happens to include marijuana as an ingredient.

The patent office received more than 250 pot-related trademark
applications in the three months after it created the new trademark
category (many, though, did not list the specific category; the patent
office says about 57 applications did).

There were applications for trademarks on "Tartukan Death Weed,"
"Pot-N-Candy," and numerous businesses incorporating "Green" and
"4:20"-a number that pot smokers often associate with weed, sometimes
smoking it at 4:20 p.m. and celebrating April 20 as a pro-pot holiday.

Pot businesses that had earlier filed for trademarks-like the Canny
Bus, a San Francisco medical-marijuana delivery service that applied
to register its logo in February-had hope that the patent office would
recognize them.

Weed entrepreneurs hired mainstream intellectual-property law firms
like Knobbe Martens in Southern California and Weide & Miller in Las
Vegas to register their weed trade names.

Representing a pot entrepreneur is no different from doing
intellectual-property work for other clients, said Knobbe Martens
partner Mike Trenholm. Weide & Miller partner Ryan Gile said he
believes the patent office should award med-pot trademarks to his
client, Panatella, even if there's no pot-specific category.

The pot-trademark rush created some friction in the pot trade,
sparking arguments over whether long-used pot names such as Purple
Haze and Acapulco Gold, made famous by comedian Tommy Chong more than
30 years ago, are subject to "prior art," meaning their use in the
past precludes a trademark.

Panatella, the Colorado consortium, applied to trademark Mellow Yellow
and many more oldies, including the word Chronic (pot slang made
popular a decade ago by rapper Snoop Dogg), along with Maui Wowie,
Albino Rhino and others.

Trademarking terms like Chronic would be "outrageous" because the
names have been commonly used for decades, said Mr. DeAngelo, the
Oakland med-pot CEO.

Mr. Pappas, the patent office spokesman, said the office will consider
matters such as prior art on individual pot-trademark applications.
New pot-trademark filings will be subjected to the office's normal
13-month review process, added a spokeswoman, Jennifer Rankin Byrne.

The brief life of the pot-trademark category began after the patent
office got email requests to create a classification for med-pot
trademarks, the patent-office spokesman said. In response, agency
staffers created the new category because, he said, some state laws
allow medical marijuana. To be eligible for a trademark, a product
must be legal for interstate trade, not violate international trade
agreements and be in ongoing commercial use.

In recent days, said Ms. Byrne in an email, "it has come to our
attention that as a result of the state of the law regarding medical
marijuana, there may be issues regarding whether trademark applicants
with medical marijuana products and services can establish lawful use
in interstate commerce."