Patent Office Raises Hopes, Then Snuffs Them Out
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Patent Office Raises Hopes, Then Snuffs Them Out
Posted by CN Staff on July 19, 2010 at 17:38:31 PT
By Justin Scheck
Source: Wall Street Journal
USA -- 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. The Canny Bus  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."Source: Wall Street Journal (US)Author: Justin ScheckPublished: July 19, 2010Copyright: 2010 Dow Jones & Company, Inc.Contact: wsj.ltrs wsj.comWebsite: Medical Marijuana Archives
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Comment #8 posted by Sam Adams on July 20, 2010 at 14:01:41 PT
snide WSJ
If only we could "snuff out" the oil "dealers" that are ruining our country. Our world!Maybe if we had some funny-sounding names like "Maui Wowie" for oil we could start arresting and locking up the oil criminals like BP and Exxon executives? The WSJ wouldn't like that.
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Comment #7 posted by FoM on July 20, 2010 at 08:22:20 PT
Panama Red by the New Riders of the Purple Sage
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Comment #6 posted by herbdoc215 on July 20, 2010 at 08:20:01 PT
I have gel-electrophoresis prints from 1990-now 
of over 439 strains that shows prior-use of the actual DNA prints of the specific strains we produced through breeding but we never tried to stop others from using them or gain from them really as it was done as a self-defense measure because a few of us saw this coming before GW tried to tie up so many strains and breeders in Europe when I was there before they went public, and land-race strains will NEVER be patentable? Personally I think trademarking business names is OK, but anything else is a fools dream because of common-use doctrine and almost 100% of technique's and processes being used now to manufacture came from modifying things from other businesses for our purpose so rendering them moot from protection? I look at much of this myself like Linix, we give away most info and share in research and will be paid to consult because we ARE the cutting edge and the team of scientist we have assembled over the last 5 years I would stack next any in the world so we have no worries about patented semantics as it's only a leg up on a lawsuit and to get that you must publish exact formula's and all...funniest part about all the gov't and UMISS patents is they rushed the biscuits and now when they are fixing to be needed MANY are falling out and are open with instructions included...idiots! I will just keep my hole cards real close to my vest now as I trust my staff and have learned how to earn loyalty and let the Johnny-come-lately's and pikers run interference for us allowing our business models to evolve legitimately! peace, Steve Tuck
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Comment #5 posted by dongenero on July 20, 2010 at 07:53:48 PT
patents vs trademarks
Apparently cannabis can be patented as we've seem with the US government's own patent on medical marijuana, #6630507.As for trade marking, one would think it would be possible by the same token.A good point is made in the article regarding "prior art". Many of these names have been around freely for decades and probably are the right of no one, unless the original breeder of the strain is existing (which many are). The Acapulco Golds, Panama Reds and the strains from the 60s or 70s are, I think, land race strains that no one should probably be able to co-opt. It would be nice if those strains could be definitively isolated and produced again though.It would be interesting to hear herbdoc's take on it.
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Comment #4 posted by ezrydn on July 20, 2010 at 06:51:52 PT:
Patent Locations Question
Is there a rule that states that if you live in one country, you MUST patent through THAT country or is it possible to patent through other countries? I ask because other country patents should hold the same weight and protection as in-country patents. Right or wrong?And, if right, then why not seek out countries where patents can legally be filed? Copyright, trademark and patent laws are all over the globe and seem to be protected, country to country.
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Comment #3 posted by Hope on July 19, 2010 at 20:47:37 PT
This article
"It was a mistake and we have removed it."I'm disappointed. But that it even happened for a while is a good indication of the future, I think.Latching on legally to so many commonly used names doesn't seem all that right. I guess that's the way the business world works though. And the long awaited and fought for end of cannabis prohibition is getting to a place of real business, really fast. We all knew we wouldn't all like everything about it all when legalization finally got here, all the time... at all. Still... it's better than the way it's been, and still is nearly everywhere, with people getting hurt... so hurt.. and even killed because of viciously unjust laws.Bring it on.
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Comment #2 posted by Hope on July 19, 2010 at 20:30:44 PT
 Ekim..."rally for St. Judes Hospital"
Something we all should do and many people do.Thinking of those babies, children, and young people, and what they go through helps me keep from being such a sissy about my own personal journey.
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Comment #1 posted by ekim on July 19, 2010 at 20:10:23 PT
Trademarking terms like Chronic be "outrageous&qu on the HillStories from the week of July 16, 2010Get your motor runnin’:  Combining the COP t-shirt and my motorcycle, Saturday I joined 341 other bikers on a 100 mile, 7 stop charity rally for St. Judes Hospital.  At all the stops a steady stream of people asked about the shirt & good chats followed.  Some had a difficult time believing I had never been stopped by the police. Karen, my wife, wearing her ‘ask me why’ shirt also had many good chats. A deputy who led the rally engaged me on the shirt. He had never spoken to a cop who agreed. “Maybe the retired guys feel that way, but no one I know.”  Unknowingly, he answered his own point. Of course active duty cops can not ‘come out.’  The two who did in the past few years were fired or driven out. (Brad Jardis & Jonathan Wender).Glad to help:  Dave from Saginaw, Michigan helped me in 2006 meet several many VIPs and 3 editorial boards. Recently the local DEA commander has been busting Michigan-legal medical marijuana operations.  Dave and I chatted about what could be done.   Using my contact with an office which had a similar problem, I was able to provide Dave with (one day service) the letter that Congressman Jared Polis (D-Boulder, CO) wrote to Attorney General Holder on the issue of rogue* agents disregarding Holder’s orders to back off.* He will include this letter in communicating with his reps in DC.Developing relationships and becoming a trusted source of information has been Job One since 2005.'Drug Policy Specialist, COP -
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