Legalize it®? On cannabis brands
Meanwhile, on the other side of the ocean recognizable trademarks for cannabis products are emerging, which of course have to be registered by their owners. In our country this is often very difficult: EU trademark applications that refer to cannabis are almost always refused because of a conflict with public order and decency. Annoying for entrepreneurs who are already looking ahead to a future legalization in the EU.
A neutral reference to the hemp plant in a trademark application will not always lead to refusal at EU level. Only if this sign contains elements reminiscent of the recreational use of cannabis will it be deemed contrary to public policy. The fact that a trademark is exclusively used for medical or industrial activities and not for the encouragement of cannabis use is not enough to be eligible for registration. It is not the use in practice but the perception by the public that determines whether a sign is acceptable or not. If a trademark evokes an association with recreational cannabis use in the general public, this trademark goes against the policy of those member states where cannabis use is illegal/criminal. A registration is then not possible.
In practice, it will be difficult to register a trademark that refers to cannabis in any way. In the Bavaria Weed case, the image of a small cannabis leaf and the use of the word “weed” were enough for refusal. These would generate associations for the general public with the recreational use of marijuana, despite the fact that the mark would only be used for therapeutic activities. Due to the general familiarity of the cannabis magazine, avoiding an association between this symbol and recreational cannabis use is very difficult.
As such, the EU Office remains strict on all brands that refer to cannabis in one way or another. This is based on the fact that the use of marijuana is illegal in several EU member states. However, member states’ policies on cannabis are changing rapidly: several have recently decriminalized the recreational use of cannabis and/or legalized its medicinal use. The EU Office is rather taking a wait-and-see approach to these evolutions. A brand that refers to cannabis use can only be registered if it is acceptable in every EU member state.
The EU does not yet seem ready for explicit “cannabis trademarks”. However, we have noticed that every now and then a scoundrel gets a trademark registered for activities that leave little to the imagination. We refer for example to the brands CANNABONG for cigarettes, tobacco mills and water pipes, LEGALIZE for items for smokers, and SWEEDLEAFS for CBD oil and cannabis flowers.
The EU Agency must oversee public order and morality throughout all of the EU. In the Benelux, morals are a bit looser and less use is made of this ground for refusal. See for example a trademark 420 DUTCH HIGHLIFE, registered in July 2021, among others for cannabis seeds and cannabis plants. Remarkable, if you know that growing cannabis plants is still in fact illegal in Belgium.
Internationally, a clear trend can be observed: legalization of (recreational) cannabis and acceptance of the culture that goes with it. If this trend also continues in the EU, trademark offices will have to adapt each time. What to do with the sale of medicinal marijuana, which is increasingly being legalized by EU states? What about the legal CBD shops, which only sell products with negligible THC content? The law does not specify which signs specifically go against public order or morality. As a result, trademark offices have to perform the test again and again, in line with the current situation.