What advice would you give your clients about brand protection in your jurisdiction? Is it easy to trademark a cannabis brand?

The possibilities to register cannabis trademarks with the Austrian Patent Office are very limited. To date with the Austrian Patent Office only three trademark registrations including the term “cannabis” are (still) registered;

  1. “Österreichisches Cannabis Netzwerk” for the Austrian Cannabis Network
  2. “Cannabisin” for a drug (registered 2014)
  3. “Jayzoo Cup Winner Cannabis” – combined trademark (registered 2021) in classes 3, 25, 34

Under EU law, inter alia, the following signs are not to be registered as trademarks: “Trademarks which are contrary to public policy or to accepted principles of morality”. On this basis, registration of the device trademark “Cannabis Store Amsterdam” as an EU trademark was recently refused, as Margaret highlighted.

The General Court of the European Union (EGC) upheld this interpretation of the law. Although cannabis with a THC content below a certain threshold does not constitute a narcotic substance, the sign will be perceived in its entirety as referring to a narcotic substance (especially through the combination of the individual elements of the sign). The mark is therefore contrary to public policy because cannabis with a THC content above a certain threshold is illegal in many EU countries and tackling the spread of cannabis meets a public health objective. According to the EUIPO’s case practice, terms which may designate a cannabis variety, or a cannabis seed are also not protectable as a trademark.