Entrepreneurship and Legal Uncertainty: Unexpected Federal Trademark Registrations for Marijuana Derivatives

50 Pages Posted: 30 Jun 2017 Last revised: 13 Mar 2019

See all articles by W. Michael Schuster

W. Michael Schuster

University of Georgia - C. Herman and Mary Virginia Terry College of Business

Jack Wroldsen

Independent

Date Written: June 29, 2017

Abstract

Though several states have legalized marijuana use, the drug remains illegal under federal law. Not surprisingly, the United States Patent and Trademark Office (USPTO) refuses to register trademarks related to marijuana because of the federal prohibition. What is surprising, though, is the USPTO’s willingness to grant trademarks for cannabidiol (CBD) — a marijuana derivative that is likewise expressly illegal under federal drug laws.

This article explains why the USPTO’s divergent treatment of trademark applications for CBD and marijuana products is legally incoherent. Additionally, when viewed from an entrepreneurial perspective, this phenomenon exemplifies how legal uncertainty breeds entrepreneurial opportunity. Specifically, the article argues that the evolving regulatory landscape for CBD and marijuana products has been, and continues to be, ripe for legal strategists and innovative entrepreneurs to combine forces to create competitive advantages in the emerging marijuana industry.

Keywords: Entrepreneurship, Trademarks, Uncertainty, Strategy, Marijuana, Cannabidiol, CBD

Suggested Citation

Schuster, W. Michael and Wroldsen, Jack, Entrepreneurship and Legal Uncertainty: Unexpected Federal Trademark Registrations for Marijuana Derivatives (June 29, 2017). 55 American Business Law Journal 117 (2018, peer reviewed). Available at SSRN: https://ssrn.com/abstract=2995240 or http://dx.doi.org/10.2139/ssrn.2995240

W. Michael Schuster (Contact Author)

University of Georgia - C. Herman and Mary Virginia Terry College of Business ( email )

Brooks Hall
Athens, GA 30602-6254
United States

Jack Wroldsen

Independent ( email )

Denver, CO 80202
United States

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