Try Not to Get Too High on a Clever Trademark

Colorado is the first state to legalize marijuana for non-medical sale and use. The state projects $578.1 million a year in marijuana sales from the over a hundred new businesses selling pot.

An Influx of Marijuana Trademarks

This myriad of new businesses opening up in the marijuana industry is a perfect illustration of how important it is for consumers to be able to identify the “high” achieving business over those with poor quality standards that are destined to “burn-out.” Businesses realize this and hence it is unsurprising that the legalization of pot has created a rush to the United States Patent and Trademark Office for those looking to register trademarks for new products and services related to the marijuana industry—marijuana trademarks if you will.

Some of the more interesting marks include: MJ Freeway for computer services for inventory control and management of medical marijuana; Giving Tree of Denver for use with retail services featuring clothing and lifestyle herbs including marijuana; MyBudTender for a mobile app that provides marijuana-related information; Colorado Weed Wear for use on clothing; and Pot is the New Gay for consulting services related to marijuana legalization strategies.

At Corridor Law Group we are experienced at helping our clients obtain protection for new marks and enforce their current marks. We also work with a network of marketing specialists to aid clients in creating and branding a new legally protectable trademark.

When considering a trademark, business owners need to understand that the protection a given mark will receive from the courts, and the likelihood that a registration will be granted from the USPTO, depends on, among other factors, where the mark falls on the “spectrum of distinctiveness” which runs from fanciful to generic.

Marks that are fanciful are “coined” terms, and generally receive the most protection. Examples of fanciful marks include Kodak, Starbucks, and Exxon. Similar to fanciful marks, and slightly lower on the “spectrum of distinctiveness” are arbitrary marks. Arbitrary marks are common words which are normally used in a way that has no relationship to the goods or services they are being used to identify. Possibly the most famous example of an arbitrary mark is Apple Computer. While fanciful and arbitrary marks are easily registered and protected, companies may be discouraged from using them since by their nature, they tell nothing about the product or services being offered.

Further down the “spectrum of distinctiveness” fall the suggestive trademarks. These are marks that allude to some quality or characteristic of the product or service, but are not merely descriptive. Examples or suggestive marks include Jaguar and Mustang for automobiles.

Even lower on the “spectrum of distinctiveness are descriptive trademarks. These marks are often chosen by companies as they are self-explanatory, but it should be noted that the scope of their protection is quite narrow. Examples of descriptive marks would include Carpetland for a carpet store or Famous Footwear for a shoe store.

Finally, at the far end of the “spectrum of distinctiveness” are generic marks. Generic trademarks occur when the mark used to identify the product is also used to identify the whole class of similar products. Although these marks are not protectable, an example of one would be using Apple to identify apples.

While creative branding is important, businesses should never forget that the purpose of a trademark is to serve as a source identification. Some of the most famous marks had no relationship to their related products. Although a creative trademark may at the fringes help sell an item, at the end a company’s success ride or falls on the quality of the goods and services it provides.


Props to 99designs for providing some nice "brand" examples (seen above) and holding up their end of the spectrum of distinctiveness: cheap marijuana logo design for companies.