Can’t Trademark that Cannabis Logo? Try Copyright

Every business thrives on brand differentiation. One of the most effective ways to promote public identification and recognition is to enhance and protect your brand. Your brand is of course your name but it is also your logo. Beyond that, really, it’s everything about you.

As far as “formal” branding elements, logos are right there at the top. Still, there is a fair bit of confusion among business owners and even lawyers about how logos are legally protected. Are they to be registered as trademarks? Copyrights? Are logos registrable as both?

Let’s look at trademark first. Trademarks are words, phrases, symbols or designs that identify the source of a product and help distinguish that product from that of competitors. However, as we have written about extensively on this blog, federal trademark protection is not typically available to cannabis businesses because the federal illegality of “marijuana” prevents owners from demonstrating lawful use of their marks in commerce—a prerequisite imposed by the United States Patent and Trademark Office.

Fortunately, trademark law is not the sole intellectual property (“IP”) tool a cannabis business can use to protect its logo. Copyright protection may be available as well. Unlike trademark law, copyright law does not prohibit the type of work that is eligible for copyright protection. Accordingly, cannabis-related works, including logos, often may be copyrighted.

To benefit from copyright protection, a cannabis logo must:

1. Be original to the author, which means the author must have created the work independently (e., the work must not be copied);
2. Possess a “minimal degree of creativity;” and
3. Be fixed in a tangible form that is sufficiently permanent to be reproduced.

Therefore, logos that are adequately original and ornate have a strong chance of being copyright protected. Note that such logos would be copyright protected even without registration. It is however in the business’s best interest to register its logo with the U.S. Copyright Office. Registration affords significant benefits, particularly in the context of copyright infringement, because it gives the business the right to sue and to be awarded statutory damages and attorney’s fees should it prevail on an infringement claim. In addition, copyright registration is relatively straightforward and inexpensive.

Regardless of those benefits, it is important for cannabis businesses contemplating the federal registration of their logos to understand the possibility that their copyrights might be unenforceable. Because all copyright infringement cases must be adjudicated by a federal court, there is a risk that the federal illegality of cannabis would arise in certain facets of litigation and hinder the enforceability of the copyright. (The same would be true in cannabis patent enforcement cases, as we discussed here.) However, such risk is currently speculative as no cannabis copyright infringement case (or patent infringement case) has been litigated.

Assuming the copyrighted logo of a cannabis business is enforceable, it affords the business the exclusive right over the logo’s reproduction and public display. In addition, copyright protection gives the cannabis business the ability to receive compensation for the use of the logo by others. Not only does copyright protection help the cannabis business enhance its public recognition, it also enables the business to capitalize on its IP assets and helps it secure market dominance and profitability, and this for the life of the copyright holder, plus 70 years.

In conclusion, given the fact that cannabis businesses are presently barred from securing federal trademark registration for their logos, they should consider copyright registration for qualifying logos, in order to achieve brand differentiation and secure a critical competitive advantage. The value proposition for copyrights is all the stronger given the inexpensive and straightforward nature of the registration process.