TTAB confirms denial of illegal use of “PUREXXXCBD” for herbal extracts and supplements containing CBD – Intellectual Property
United States: TTAB affirms denial of illegal use of “PUREXXXCBD” for herbal extracts and supplements containing CBD
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In just 5 pages, the Commission confirmed the refusal to register the proposed mark PUREXXXCBD for “Plant extracts for pharmaceutical purposes; vitamins; dietary supplements; all the aforesaid goods containing CBD solely derived from hemp containing not more than 0.3% THC by dry weight” (class 5). The Board concluded that the plaintiff AgrotecHemp had no genuine intention to use the mark in commerce because the products do not comply with the Federal Food, Drug and Cosmetic Act (FDCA) and are therefore illegal. In re AgrotecHemp Corp.serial number 88979905 (February 10, 2022) [not precedential] (Opinion of Judge Thomas Shaw).
Plaintiff’s vitamins and supplements and its herbal extracts fall under the FDCA because they are intended to affect the structure or function of humans or animals.
The FDA requires that any product marketed with a therapeutic benefit claim and containing cannabis or cannabis-derived compounds (such as CBD) must be approved for its intended use before it can be introduced into interstate commerce. Since Plaintiff did not file an NDA or ANDA for its products, it was illegal for Plaintiff to introduce these products into interstate commerce as of the date of filing of the petition, and it remains so. .
I repeat, since at the time of Applicant’s filing date the identified goods could not be lawfully brought into interstate commerce, Applicant did not have the requisite bona fide intention to use the mark. in legitimate trade. See In re Stanley Bros. Social Enters., LLC2020 USPQ2d 10658, *9 (TTAB 2020) (where identified goods are illegal under the FDCA, use by applicant is not in lawful commerce).[TTABlogged here].
And so, the Board upheld the denial under sections 1 and 45 of the Lanham Act.
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Comment from TTABlogger: See also the very recent, unprecedented PORT HEMP COMPANY decision [TTABlogged
here]also authored by Justice Shaw, who is on all fours with this ruling.
PS: The first full sentence on page 3 of the PUREXXXCBD review doesn’t make sense to me.
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