Kevin Ryan writes a guest blog for us this week.  His company has successfully acquired a trademark with USPTO for a cannabis related product. 

Give up now. You can’t get a trademark for your cannabis product.

The US Patent & Trademark Office (USPTO) doesn’t issue trademarks for cannabis products. Sorry. It’s true. We’ve all heard that. We know it. And, we think that’s bad. Maybe not. Certainly, if that wasn’t the case, we would now have 10,000 cannabis-related trademarks hustling the landscape; most would depict a version of the well-known “leaf” and the words pot, weed, marijuana, ganja … you get the idea.

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We should all recognize, if that world came to pass, choosing one cannabis brand from the other would soon become nearly impossible for the consumer. That would hardly be a good.  Perhaps, at this stage of market development, the USPTO is doing the cannabis industry a favor. It’s forcing us to a level of creativity and branding acumen we wouldn’t have achieved otherwise. Seriously, don’t give up. Some highly-successful trademark examples and a couple of simple rules may provide guidance for both protecting your future cannabis enterprise and building your brand over time.

Stop thinking literally. That’s the first rule.

Many great trademarks do not reference a core product, service or market. Start with Apple®. Does its trademark actually say, Computer? Cell Phone? Software? Nope. It’s registered under a USPTO classification for computers, but nothing in the trademark suggests computers.  Still, what we do know … it’s been very successful.  Apple® has grown and evolved under its trademark from a relatively small desktop computer company into a dominant cell phone and technology player – markets that could not have been predicted at the onset of trademark design.

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If a hugely successful computer and cellphone company doesn’t have any specific product or market references in its trademark; why do you need a direct, overt cannabis reference in yours?

Such phenomena can be seen across all markets. There are hundreds of examples proving this case.

Coca-Cola® serves as a relevant example to the emerging cannabis market. The original Coca-Cola® product, sold in soda fountains more than one hundred years ago, no longer exists. However, today, the Coca-Cola ® Company makes more money merchandizing its original trademark, than it does selling its core product.

Talk about irony! The only commercial USPTO trademark directly referencing cocaine became the world’s most valuable merchandising property. Don’t you just love it! Clearly, Coca-Cola® as a trademark wouldn’t pass the USPTO gate today. However, before the puritans took over our government, Coca-Cola was at the forefront of a marketing trend promising “pep” and vigor through carbonated beverages.  Their product evolved and flourished for two reasons. First, they substituted higher sugar content for cocaine. In other words, they kept the pep, but lost the buzz. Second, they revolutionized consumer branding by creating an iconic package. That package is the patented, “hobble-skirt” bottle design recognized worldwide.

For Coke®, and for all consumer beverages, including bottled water, soft drinks, beer, wine, and liquor; packaging sits at the center of modern marketing and merchandizing strategies. For the beverage market, study after study proves consumers will select a package which appeals to their personal identity, regardless of content. This is particularly true for beer, wine and liquor. These products are strong parallels to the legal cannabis market. Eventually, as the cannabis market becomes more competitive, your customers will also select cannabis products based on packaging. Prepare for it.

Trademark your packaging, not your product. That’s the second rule.

To start, develop original packaging for something completely legal. Something you would market collaterally, as if your successful cannabis enterprise was on-going now.  It could be apparel, food, a drink, whatever; as long as it appeals directly to your core cannabis consumer and can be adapted to cannabis packaging eventually. Through original packaging, build the brand and allow your cannabis offering to rise underneath over time. Consider protecting your unique packaging approach with a utility or design patent. Eventually, you’ll be able to extend your trademark to a USPTO trademark class for cannabis. It will happen. The tide is turning.

There’s a real-world example where package design is being leveraged to build brand recognition adjacent to the cannabis market. FreeTheBong® carries both a USPTO trademark and a USPTO patent. It’s a product that looks like a bong, operates as a beverage container and packaging system, but functions across other secondary uses.

To gain its patent, the developer/inventor literally turned the traditional bong upside down and redefined its common use.

With that, the USPTO had no choice but to allow a bona fide trademark to include the word, “Bong”. This is how the USPTO trademark, FreeTheBong® was born.

Applying the rules and merchandizing strategies just described, e.g. avoiding any overt cannabis imagery and references in a trademark, and leveraging its original package design, FreeTheBong® is on the path to building a branded identity nationwide. To start, product variations include a wide variety of beverage containers for beer, wine, spirits and non-alcoholic drinks; disposable paper bottle bongs; secure packaging for flower and edibles; and a disposable pipe and stem product suite that turns any water bottle into a functional bong. Much more will follow in time.

After all, what says “Cannabis” like bong, without saying the word we can’t say in a trademark? Click To Tweet

FreeTheBong® represents one anthem for a safe, sensible and legal cannabis market nationwide.  Get started on your vision. If FreeTheBong® can do it. So can you.