Marijuana Trademarks: Legal Issues in Branding Pot

Speaking of marijuana brands, how exactly do you go about getting trademark protection for something that's illegal?  Federal law won't give you one.  What about states where marijuana is legal?

Those are the issues taken up by Oregon lawyer Sean Clancy in a timely new paper forthcoming in the Lewis & Clark Law Review, "Branded Bud or Generic Ganja? Trademarks for Marijuana in Washington."  Here's the abstract:

    Marijuana is legal under Washington State law but illegal under United States federal law. This paper assumes that marijuana will remain legal in Washington. Springing from that assumption, a crucial question is, what shall a merchant call her marijuana? This paper explores that question first by describing the benefits and costs of allowing trademark protection for marijuana, concluding that trademark law should protect marijuana products. Second, this paper identifies possible methods of seeking trademark protection for marijuana. Third, this paper explains how the law should determine whether proposed marijuana trademarks are distinctive and protectable, or unprotectable for being descriptive or generic. Ultimately, this paper argues that an understanding of marijuana’s various genetic strains and slang terms is necessary to properly assess marijuana trademark rights and to prevent unfair competition in the marijuana industry.