Trademark Laundering, Useless Patents, and Other IP Challenges for the Marijuana Industry

68 Pages Posted: 19 Aug 2015 Last revised: 9 Jun 2016

See all articles by Sam Kamin

Sam Kamin

University of Denver Sturm College of Law

Viva Moffat

University of Denver Sturm College of Law

Date Written: August 17, 2015

Abstract

Marijuana law is changing rapidly in the United States today – since 1996, 23 states and the District of Columbia have legalized medical marijuana and five jurisdictions have made marijuana legal for all adults. Because marijuana remains a prohibited substance under federal law, however, the states are significantly limited in their ability to control marijuana policy within their borders. For example, because banking is regulated by the federal government, state-licensed marijuana businesses cannot gain full access to banking services; because bankruptcy is a federal benefit, it is unavailable to those involved in the business of violating federal law.

This article examines the implications for marijuana businesses of another area of federal regulation that has heretofore escaped academic commentary: federal intellectual property law. The continuing federal marijuana prohibition means that the most relevant federal intellectual property protections – trademark and patent – are largely unavailable for most marijuana businesses. While they are bound to comply with the dictates of trademark and patent law in their own affairs, marijuana businesses cannot acquire the rights and benefits of those laws or invoke those doctrines against others.

We discuss the ways in which these businesses attempt to circumvent the unavailability of patent and trademark rights, often through reliance on state law doctrines which generally prove insufficient to meet their needs. We also discuss the unexpected natural experiment that the current conflict between state and federal law creates. It is often asserted that intellectual property protections are necessary to foster creativity and investment. Yet the marijuana industry has seen extraordinary innovation and capital formation, even as these ostensibly necessary protections have proven unavailable. We conclude by discussing the implications of this observation for federal intellectual property law and policy more generally.

Suggested Citation

Kamin, Sam and Moffat, Viva, Trademark Laundering, Useless Patents, and Other IP Challenges for the Marijuana Industry (August 17, 2015). 73 Washington & Lee Law Review 217 (2016); U Denver Legal Studies Research Paper No. 15-43. Available at SSRN: https://ssrn.com/abstract=2646162 or http://dx.doi.org/10.2139/ssrn.2646162

Sam Kamin (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States
303-871-6125 (Phone)
303-871-6711 (Fax)

HOME PAGE: http://law.du.edu/index.php/profile/sam-kamin

Viva Moffat

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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