Delta-8 THC: Is It Up for Trademark?

Did you know that a federal court recently ruled that Delta-8 THC products can be legally possessed and sold?  What does this mean for you?  It means that brand names, product names, logos, slogans, etc. are now eligible to be protected for your Delta 8-THC products both federally and under certain state laws.

A recent Ninth Circuit Court of Appeals deemed delta-8 THC legal at least for purposes of federal trademark protection stating, “Congress inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake.”

Manufacturers and sellers of products that contain Delta-8 THC need to protect their brands, and now they can.  While a federal trademark on Delta-8 THC is still unlikely to be obtained, you can still register your trademark at the state level in states where Delta 8-THC is legal, as there is common law trademark protection. Brand protection is a vital part of every business and documenting the date of first use of your trademark may help you down the road in any common law trademark disputes.

Filing a Trademark with Your State

Filing a trademark shouldn’t be tedious and time-consuming, but it is. A trademark attorney will help you navigate the process, whether you are filing your first trademark application or a new one to supplement a previous application that excluded Delta-8 THC products and you should get it done immediately in order to claim your rights to your brand.  Your state trademark offers you protection within the borders of the state in which it is registered. Contact a trademark attorney for help in the process as these are uncharted waters in a very competitive industry.  They can do a comprehensive search of trademarks to ensure that your trademark is unique and unlike others on file in your category. Trademark attorneys are also aware of what protections are offered in which states under the law. A state trademark is often acquired much faster than a federal trademark and is less expensive.

While the USPTO has stated that it is unlikely that a federal trademark will be granted for goods and services specific to Delta-8 THC, it should be noted that it may still be worthwhile to file a federal trademark application. This would open doors allowing registration of these marks if the USPTO clarifies Delta-8 THC’s legality, and the first to file their application may be the first in line.

If you own a cannabis brand, NOW is the time to act.  With an influx of trademark applications in the cannabis category, you don’t want to wait.  If you are ready to get started, we at SecureMark Legal are here to help. To schedule a consultation, give us a call at 239.323.0702.



SecureMark Legal is a dynamic, women-owned law firm that seeks to take the mystery out of brand protection and really take that aspect of protecting business brands “off your plate” so you can focus on what you do best, running your business. We strive to break everything down for you in easily understandable ways and to really become a partner in your success.  We are based out of South Florida, but since trademark and copyright registrations are primarily Federal in nature, we are able to serve clients all across the United States regardless of where your business is based.