At the Rocky Mountain Intellectual Property & Technology Institute, a session discussed updates on the commercialization of marijuana. Most trademark practitioners already knew that applications for federal registration of marijuana dispensaries or THC-containing products themselves will be rejected, but that protection is available on a state level, or on a federal level for peripheral products (T-shirts, oils or whatnot including the dispensary’s logo). I learned that day that the COLORADO RETAIL MARIJUANA CODE actually addresses trademarks, too! In an attempt to prevent consumers from being confused about whether they are consuming products that contain marijuana or not, Colorado Rev. Stat. Section 12-43.4-404 (e) provides that:
A retail marijuana products manufacturer shall not:
(I) Add any marijuana to a food product where the manufacturer of the food product holds a trademark to the food product’s name; except that a manufacturer may use a trademarked food product if the manufacturer uses the product as a component or as part of a recipe and where the marijuana product manufacturer does not state or advertise to the consumer that the final retail marijuana product contains a trademarked food product;
(II) Intentionally or knowingly label or package a retail marijuana product in a manner that would cause a reasonable consumer confusion as to whether the retail marijuana product was a trademarked food product; or
(III) Label or package a product in a manner that violates any federal trademark law or regulation.