Can you trademark a cannabis brand?

by | Aug 6, 2025

Can you trademark a cannabis brand? You may have some options you did not know about

As the cannabis industry grows, branding has become essential for standing out in a competitive market. However, trademarking cannabis-related goods and services remains a complex issue—especially given the conflict between state and federal law. Here’s what cannabis business owners need to know about securing trademark protection at both the federal and New York state level, along with practical trademark strategies.

Federal Trademark Protection: What You Can’t Register

The United States Patent and Trademark Office (USPTO) will refuse registration of trademarks for goods or services that are:

  • Illegal under federal law, including the Controlled Substances Act (CSA) and Food, Drug, and Cosmetic Act (FDCA).
  • Associated with marijuana, THC, or CBD products intended for human or animal consumption (other than hemp-derived CBD under specific conditions).

Examples of trademarks that cannot be federally registered:

  • Brands selling or distributing marijuana flower, THC edibles, or cannabis-infused beverages.
  • Dispensary names.
  • Smoking accessories that qualify as drug paraphernalia under federal law.

Federal Trademark Protection: What You Can Register

You can register marks federally for:

    • Hemp-derived CBD products that comply with the 2018 Farm Bill (containing less than 0.3% THC) and are not marketed as dietary supplements or therapeutic drugs.
    • Apparel and merchandise (e.g., t-shirts, hats).
    • Consulting, education, software, branding services, or non-plant-touching services.
  • Cannabis advocacy, event promotion, and information websites.

New York State Trademark Protection: A Viable Option

Unlike the USPTO, New York State’s trademark office (through the Department of State) does not apply federal Controlled Substances Act restrictions when reviewing applications. This allows cannabis businesses operating legally under New York’s Cannabis Law to register their marks at the state level.

You can register New York state trademarks for:

  • Cannabis products (flower, concentrates, edibles, topicals).
  • Retail dispensary names.
  • THC beverage brands.
  • Cultivation and manufacturing operations.
  • Ancillary services specific to the cannabis industry.

State registration only protects your brand within New York but provides:

    • Public notice of your rights.
    • Some enforceable protection until these marks can be registered on the Federal Trademark Principal Register. 
    • A basis to enforce rights against infringing local businesses.
    • Support when building brand recognition and goodwill.
  • Ability to enforce in other forums where having a registered trademark in necessary.

Trademark Strategies for Cannabis Business Owners

To protect your cannabis brand as comprehensively as possible, consider the following multi-tiered strategy:

  1. File Federal Trademarks for Permitted Goods/Services
  • If you sell both plant-touching products and branded merchandise or offer consulting or digital services, file for those legal items federally.
  • Use a separate mark or sub-brand if needed.
  1. Register State Trademarks in New York
  • File for marks covering cannabis products and dispensary names under the NY trademark system.
  • Register early—with so many brands out there, competition for names will be a race to file.
  1. Create a House of Brands
  • Consider different trademarks for distinct product lines or business divisions (e.g., retail, cultivation, edibles).
  • This helps you segment liability and tailor trademark registrations to what’s legally protectable.
  1. Use Proper Trademark Symbols
  • Use ™ for unregistered marks and ® only after federal registration.
  • New York does not have a separate symbol for state registrations—continue using ™ until federal protection is granted.
  1. Monitor for Infringement
    • Conduct regular searches to identify local or national competitors using confusingly similar names or logos.
  • Send cease-and-desist letters as needed, especially in New York where your state registration gives you strong enforcement rights.

Final Thoughts

While federal restrictions still limit cannabis trademark protection, New York state law provides meaningful options to protect your brand. By combining state and federal strategies, cannabis entrepreneurs can build valuable intellectual property and guard their identity in an increasingly competitive market.

If you’re a cannabis business owner, now is the time to take trademark protection seriously. Work with an attorney who understands both federal and state trademark law to ensure your strategy is aligned with your business goals.

 

Tracy Jong is a Senior attorney at Evans Fox LLP with 30 years of experience focusing her practice in business law, intellectual property and licensing for alcohol and cannabis. Tracy Jong is a member of the New York Bar and is a registered attorney at the United States Patent and Trademark Office. She can be reached at Tjong@EvansFox.com.

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The content has been prepared for informational purposes only; it should not be construed as legal advice, does not create or constitute an attorney-client relationship, and readers should not act upon it without seeking professional counsel.