U.S. trademark authorities have rejected an application from CBD maker Charlotte’s Web to register the trademark “CW,” saying it would violate the Food, Drug & Cosmetics Act (FDCA).
“The record shows that Applicant’s goods contain cannabidiol (CBD), an extract of the cannabis plant, that is regulated under the Food, Drug & Cosmetics Act (FDCA) as a drug,” the Trademark Trial and Appeal Board (TTAB) said in a recently issued opinion rejecting the application.
TTAB said that while the Industrial Hemp Provision of the 2018 Farm Bill permits authorized entities to “grow or cultivate industrial hemp” under certain circumstances, it does not permit the distribution or sale of CBD in food while the substance is the subject of ongoing clinical investigation.
Charlotte’s Web had argued the product was exempt from the FDCA’s restrictions under the provision, a claim rejected by TTAB. The company had also argued that dietary supplements such as CBD are not “food” and therefore not subject to FDCA oversight. But the appeal board noted Charlotte’s Web identified its hemp oil extract as “an integral component of dietary and nutritional supplements” in its marketing, saying it therefore falls within the Act’s definition of food.
Trademark registrations associated with cannabis have repeatedly been refused on similar grounds, because they cannot be “lawfully used in commerce,” TTAB said, quoting previous rulings.
In those decisions, the TTAB cited the U.S. Controlled Substances Act (CSA), which prohibits marijuana federally. The most recent ruling, however, cited only the FDCA, which is likely because hemp and non-psychoactive CBD derived from hemp have been removed from the CSA.
Other recent litigation regarding the legality of marketing and selling of CBD has been stayed based on the fact that guidance for CBD is expected soon from the U.S. Food & Drug Administration.
FDA has said it is “evaluating the regulatory frameworks that apply to certain (CBD products) that are intended for non-drug uses, including whether and/or how the FDA might consider updating its regulations,” which should provide guidance for the issuance of CBD trademarks.
Charlotte’s Web was named after a Colorado girl who started taking CBD after pharmaceuticals proved ineffective in her treatment for Dravet Syndrome, a rare and debilitating form of epilepsy that appears in young children and is characterized by frequent small and large seizures a day. While the young woman, Charlotte Figi, found relief using the product, she passed away at age 13 earlier this year as Charlotte’s Web was in the process of re-branding to CW.
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