January 28 2015 Marijuana Regulation and Intellectual Property Stages of Marijuana Regulation Federal Prohibition 1937present Medical Marijuana 1996present Legalization Nov 2012present ID: 680876
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Slide1
Sam Kamin and Viva MoffatJanuary 28, 2015
Marijuana Regulation and Intellectual PropertySlide2
Stages of Marijuana RegulationFederal Prohibition (1937-present)Medical Marijuana
(1996-present)
Legalization (Nov 2012-present)Slide3
The Colorado Marijuana Business4 Types of Licensed Businesses: grow, MIP, retail, testing
State regulations govern these entities
Background check
Residency Requirement
Other Entities Aren’t LicensedSlide4
Federal Prohibition under the CSAMarijuana Is a Schedule I NarcoticLegislative
and Legal Challenges to Schedule I status consistently fail
Gonzales v.
Raich
, 545 U.S. 1 (2005)
United
States v. Oakland Cannabis Buyers’ Cooperative
, 532 U.S. 483 (2001
)Slide5
Federal Views on State Experimentation with Marijuana Law ReformPrior to Legalization
Ogden Memo – October 2009
–
Cole Memo I – June 2011–
After Legalization:
Cole Memo II – August 2013 – Federal enforcement kept in abeyance as long as states competently manage 8 federal priorities.Slide6
Continuing TensionsThe Cole Memo Brought Needed Clarity, but…It is an act of prosecutorial
grace
Administrative priorities could change – administration could change
Feds could decide a state is not meeting its
obligationsSlide7
Ancillary ConsequencesEmployment
(
Coats v. Dish Network,
303 P.3d 147, 149 (Colo. App. 2013))
Contract
(
Hammer v. Today’s Health Care II,
CV2011-051310, Superior Court of Arizona, Maricopa County, April 17, 2012.)Slide8
More Ancillary ConsequencesBanking – FinCEN
announcement
hasn’t been much
help
.
Taxation –280E
Public Benefits
public
housing, student loans, etc
.
Slide9
Even More Ancillary Consequences – Access to Law and LawyersRule 1.2(d) Comment 14 – lawyers may
“
assist
a client in conduct
that the lawyer reasonably believes is
permitted” by state law.
L
ocal
Rule
D.C.COLO.L.Atty.R
. 2(b)(2
) – Attorneys may counsel re: CO marijuana laws, but may not
“assist a client in conduct that the lawyer reasonably believes is permitted by” such laws. Slide10
Intellectual Property ConsequencesThe fact that marijuana sale, possession, and use remains a federal crime has profound effects on the intellectual property rights of marijuana entities in Colorado.
Patent law
Trademark law
Copyright law Slide11
Federal Intellectual Property Law & the Marijuana IndustryPatent and trademark law are the most obvious, but both are unavailable to the marijuana industry.
Trademark law has an “illegality”
doctrine
Patent law is effectively unavailable because of the difficulty of
access
to the federal courts
Copyright law is available but not very useful
May mean a greater reliance – and pressure – on state law doctrines Slide12
Patent Law & Marijuana No “illegality” doctrine in patent law.
Discredited version of the utility doctrine might have prohibited a patent.
Federal government owns some patents on cannabinoids.
A number of patents on marijuana-related processes and manufactures, as well as applications in the pipeline.Slide13
Patent Law & MarijuanaUnder the current federal prohibition – patent law is likely to be relatively useless for the marijuana industry.
Risk in filing for and taking ownership of a marijuana patent
High chance of denial on some grounds
Likely unavailability of the federal forum to protect patent rights
Ethical considerations for lawyers
Bottom line: unless the CSA is amended, patents unlikely to be a valuable route for the marijuana industry.Slide14
State-level alternatives to patent law?Trade secret law
Contractual
mechanisms
Non-disclosure/confidentiality agreements
Non-competes
State law property doctrines?
Trespass to chattels? Conversion or theft?Slide15
Trademark Law and MarijuanaTrademark rights for the marijuana industry are clearer.
Federal trademark law
does
have an illegality doctrine, and it has been asserted to deny registration for marks
for businesses that manufacture or sell
marijuana
.
Ancillary businesses can and do receive federal trademark rights
Also, Colorado marijuana businesses might not be able to register marks because of the “use in commerce” requirement. Slide16
Federally-registered trademarks – for ancillary businesses “MARIJUANA INTERNATIONAL” for “cannabis advertising and marketing”
“MARIJUANAHOLIC” for “clothing”
“PERFECT MARIJUANA” for “counseling services in the fields of health, herbalism and lifestyle wellness”
“CANNABIZ” for “educational services”
“CANNABIS COUNSEL” for “legal services”Slide17Slide18
State law alternatives – trade name and trademarkExamples:
DIXIE ELIXIRS
--
http://dixieelixirs.com
/
THE
CLINIC –
http://www.thecliniccolorado.com
/
MEDICINE MAN
--
http://www.medicinemandenver.com
/
SWEET LEAF --
http://thesweetestleaf.com
/
Slide19
Unfair competition and deceptive trade practicesColorado Consumer Protection Act – C.R.S. § 6-1-101
et seq.
Includes C.R.S. § 6-1-105 – Deceptive Trade Practices, which offers trademark-like prohibitions: passing off, false representations of origin, etc.
Similar protections to those of the Lanham Act, but the geographic reach is obviously limitedSlide20
Copyright Law & Marijuana Copyright protection is available –no illegality doctrine,
first amendment principles permit expression that includes depictions of illegal drugs and drug use.
But, copyright is probably not that useful to the marijuana industries. That is, they don’t need it much.Slide21
A possible silver lining?How much innovation can and will happen in the (relative) absence of intellectual property protection?