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U.S. APPLICATION SERIAL NO. 87645613
MARK: TIGER HEMP BEER
*87645613*
The following refusals are continued and maintained:
- Section 2(d) Likelihood of Confusion Refusal for U.S. Registration Nos. 0542099, 3318461, 3294199, 5253306, 5258354, 5288312, 5394105, and 5383476, all of which are owned by the same entity
The following requirements have been satisfied:
- Clarification of Filing Basis
- Disclaimer of “HEMP BEER”
The following requirement is continued and maintained, with a new suggestion below mentioned in the No Bona Fide Intent to Lawful Use in Commerce refusal raised below:
- Amendment to Identification of Goods – Indicate that the goods contain “hemp”
The following refusal is now issued:
REFUSAL – NO BONA FIDE INTENT TO LAWFULLY USE IN COMMERCE – MARIJUANA-RELATED GOODS – BASED ON EVIDENCE
Registration is refused because applicant does not have a bona fide intent to lawfully use the applied-for mark in commerce. Trademark Act Sections 1 and 45, 15 U.S.C. §§1051, 1127; see TMEP §907.
To qualify for federal trademark registration, the use of a mark in commerce must be lawful. Gray v. Daffy Dan’s Bargaintown, 823 F.2d 522, 526, 3 USPQ2d 1306, 1308 (Fed. Cir. 1987) (stating that “[a] valid application cannot be filed at all for registration of a mark without ‘lawful use in commerce’”); TMEP §907; see In re Stellar Int’l, Inc., 159 USPQ 48, 50-51 (TTAB 1968); Coahoma Chemical Co., Inc. v. Smith, 113 USPQ 413 (Com’r Pat. & Trademarks 1957) (concluding that “use of a mark in connection with unlawful shipments in interstate commerce is not use of a mark in commerce which the [Office] may recognize.”). Thus, the goods to which the mark is applied must comply with all applicable federal laws. See In re Brown, 119 USPQ2d 1350, 1351 (TTAB 2016) (citing In re Midwest Tennis & Track Co., 29 USPQ2d 1386, 1386 n.2 (TTAB 1993) (noting that “t is settled that the Trademark Act’s requirement of ‘use in commerce,’ means a ‘lawful use in commerce’”)); In re Pepcom Indus., Inc., 192 USPQ 400, 401 (TTAB 1976); TMEP §907.
Here, the evidence of record indicates that the items or activities to which the proposed mark will be applied are unlawful under the federal Controlled Substances Act (CSA), 21 U.S.C. §§801-971.
The CSA prohibits, among other things, manufacturing, distributing, dispensing, or possessing certain controlled substances, including marijuana and any material or preparation containing marijuana. 21 U.S.C. §§812, 841(a)(1), 844(a); see also 21 U.S.C. §802(16) (defining “[marijuana]”). In addition, the CSA makes it unlawful to sell, offer for sale, or use any facility of interstate commerce to transport drug paraphernalia, i.e., “any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under [the CSA].” 21 U.S.C. §863.
In this case, the wording contained in the applied-for mark plainly indicates that applicant’s identified goods include items that are prohibited by the CSA, namely, the mark includes the term “hemp.” This term is broad enough to include marijuana plants and other unlawful marijuana plant parts. Compare 7 U.S.C. §5940(b)(2) (defining “industrial hemp”) with 21 U.S.C. §802(16) (defining “marihuana”). If the term “hemp” in the identification of goods identifies goods that are not prohibited by the CSA, such as fiber produced from the mature stalks of the plant Cannabis sativa L., the applicant may submit a statement to that effect and must amend the identification accordingly. If the identification is amended to identify lawful goods, this refusal will be withdrawn.
Because the identified goods consist of or include items or activities that are prohibited by the Controlled Substances Act, applicant cannot have a bona fide intent to lawfully use the applied-for mark in commerce in connection with the goods. See In re JJ206, LLC, 120 USPQ2d 1568, 1569 (TTAB 2016)(“where the identified goods are illegal under the federal Controlled Substances Act (CSA), the applicant cannot use its mark in lawful commerce, and ‘it is a legal impossibility’ for the applicant to have the requisite bona fide intent to use the mark.”); TMEP §907.
