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  • Angela Meuwsen-Sterling

Is Your Hemp & Cannabis Business and Products Protected?


I will start with a disclaimer, I am by no means an attorney and the information that I will be giving is generated from research. 


The legalisation of Cannabis, what will this mean for your business? 

  1. You will be able to leap out of the proverbial grow tent and start a legit business.

  2. If you are smart, you would have started with CBD products already, which was legalised in 2019.

  3. Your business can be registered.

  4. You will be able to produce products that can contain CBD for now. Once legislation is in place, you can create/sell products with THC under the legal requirements of the law.


What will happen when the Government says Cannabis is legal?

  1. The Government will lay down some legal rules and Fields of Green for All and Schindlers Attorneys will look at these and perhaps counter the propose regulations. This will keep going back and forth until everyone comes to a comfortable place of approval. This can take up to 2-years.


While this is happening there will be a lot of business that will either create, produce or sell products. They will start making names for themselves and their brands. You then may ask would you want to copyright, trademark or patent anything to do with your business? 

  1. If your business is cool enough, people will try and copy it.

  2. If you are planning to build a brand, you would want to protect its reputation.

  3. Or, if you come up with an invention that can revolutionaries the Hemp and Cannabis industry, you would want to protect that and make sure that you approve who can and who can't use this invention.

All of the above is part of your intellectual property and will make you money, (well... unless it doesn't work).

If you are already trading in the CBD Spectrum, to transition to a full cannabis business will be smoother. I was watching a panel discussion on branding that was held during 2018 at the Emerald Cup. The USA law prevents companies from distributing Hemp or Cannabis products over state lines, and they also don't allow it to be imported. But what businesses can do is the following, you can export or take your Brand across state and international borders. Allowing you to use local manufacturers and producers to build your brand and product range.

That's why it is crucial if you are planning to build a Brand you want to take international, that your Brand is protected. Okay, it is fucking expensive in the short-term, but worth it in the longer-term. Let's discuss which applications you may need to apply for.

Intellectual property.

What is intellectual property?

It is something created from the imagination, it's out in public, and it's different. The following samples fall under the intellectual property law: 

  • Artistic works such as music and writings

  • Artistic works such as logos, designs and creative visuals

  • Scientific or nonscientific discoveries and inventions

  • Developed words

  • Symbols and phrases

What is intellectual property laws?

Let's look at bud photography, every photographer has their own unique style, the photo could be sold, or it could be shared for free. If it is out in public, the only two people that are allowed to claim ownership are the photographer and the person who purchased the image. 

The intellectual property law ensures that no one can steal an idea, creation, design, process or product and claim it as their own. It is a bit more complicated though as there different registration.

In case you did decide to use an image that you do not own, you can do two things:

  1. Contact the owner of the image and explain why you would want to use the image and get permission or ask if you can purchase the image. In the case of you getting the picture for free, you would give the photographer or other creators a mention to acknowledge that you have used their work.

  2. If the image is found on a reputable image library or you purchased the image from the photographer, you will have a legal right to use the image without acknowledgement. The purchased photos may come with T&C's so make sure you have read those.

Open-Source

I would like to first cover open-source with you. Open-Source means that an author, creator or developer(s) created either a program or product that can be used by anyone. This is most commonly used when people write programs. Because it may be created by a collaboration of individuals, so no one person can claim it as intellectual property. However, some open source program's may be used without requesting approval from the creator.

I will try to explain, the three registrations, under the intellectual property law, and how they may apply to your Brand and product. 

Copyright

Copyrights, protect ownership of artistic works, including art, literary, musical and theatrical creations, these are:

  • Literary Works – Fiction, Non-Fiction, Poetry, Articles, Periodicals

  • Performing Arts – Music, Lyrics, Sound Recordings, Scripts, Stage Plays

  • Visual Arts – Artwork, Illustrations, Jewelry, Fabric, Architecture

  • Motion Pictures – Movies, TV Shows, Video Games, Animation, Videos

  • Photographs – News Photos, Selfies, Wedding Photos, Family Photos

  • Other Digital Content – Computer Programs, Databases, Blogs, Websites

Did you know: As soon as any of the above is published, it is automatically copyrighted. It does not mean that you can take legal action should someone steal your work. You have to still go through a legal copyright application. This will give you a licence for the following:

  • You are the legitimate owner of the work.

  • It gives the date of creation.

  • And now you can take legal action against someone who infringes on your copyright.

Did you know: Copyright laws only apply in the country where you have applied. It does not mean that you do not have a legal right, it just means you may not be able to take action against a person or company. 

Why is this important for the Cannabis industry?

Say you opened a business, you launched your website and have paid a copywriter to write some highly creative content that speaks to your Brand. This makes your site very popular and along comes Mike and decides to open a similar business. He does his research and comes across your website, he likes your copy so much that he decides to just copy and paste it into his website and only changes your name to his. He now also gets very popular, and he even starts ranking higher on the search engine. Not fair, right?

Well, you can then go to Mike and say to him that the content on his site legally belongs to you and you can force him to take down the website or change the copy, this is if you do not have legal copyright. Legal copyright, an attorney will evaluate the damage that it may have caused to your business. He will then take legal actions against Mike, not only force him to take down his site but also sue him for loss of income. 

Patent

A patent is usually given to an individual that comes up with something that is unique, useful and 100% original and will be registered as the inventor. For a person to get a patent approved, they would have needed to make a prototype, and dependent on the invention, technical drawings and research done may be required. Another important fact for a patent to be approved is it must not have been published anywhere else.

So what can you patent?

  • industrial processes

  • machines

  • chemical compositions

  • manufactured commodities

  • artefacts

Did you know: In the USA patent law they have a Plant Patent. You can apply for this patent if you can prove that this is invented or discovered and can not be found naturally in the wild. This is off particularly important in the Hemp & Cannabis industry as there is a lot of gene bioengineering, which leads to new and improved strains. This law would protect the strain as well as any descendants from the patented plant.

What do I need to know to patent something?

  • It must be original, usable and not in the market.

  • A patent lawyer will do a variety of searches to see if there is a similar product on the market and check if yours is uniquely different enough to be registered.

  • You can not publish anything if you want to apply for a patent.

  • A patent is only valid in the country that has granted the patent. If you are interested in expanding overseas, make sure that you also apply in the countries where you want your invention or process to be used. This is why China gets away with copying a lot of shit and selling it off cheaper.

  • Patent approval depends on invention usability to be used by any kind of industry. 

  • The invention must be a product, an apparatus or a manufacturing process. So, scientific theory, a work of art, or a mathematical design you can not patent, but you could copyright it.

  • Patents are only valid for a limited amount of time. Design Patents are usually 15 years, and Utility and Plant patents are about 20 years. Individuals and companies can extend these patent, but you would need to ask a patent lawyer how this can be done.

So, a patent protects the invention from those who may use it without the permission of the inventor. This includes rights to prevent the use, sale, offer for sale, and import of said invention. The patentee (owner of the patent) has the right to take legal action against those using the invention without his permission.

Trademark

You can trademark a word, phrase, symbol, design, colour, a combination of letters or numbers, or other devices that identify and distinguish products and services in the marketplace.

Word trademark – a company will trademark a product name or a company name. 

Symbol trademark – Most commonly it's the image that forms part or is a logo of a product or company, like the Nike tick. 

Design Trademark – This this could be a product design or shape that is unique to a company, this can also be an image like the Simba lion. 

Colour Trademark – This would be a colour that is specially designed or a company or a product, like the Ferrari red or Coca Cola red.

Combination Trademark – This speaks for itself, is when you would take your logo icon, the name of the company with a strapline and register this as one trademark. This is not recommended, and this may cost you a lot of money. This kind of trademark can still leave your Brand vulnerable because if the items are used separately, it is no longer covered under the trademark law.

Understand trademark symbols

TM (trademark) – Trade Marks are registered with a national trademark office, the CIPC or DTI. This would be granted to a symbol, word, or words, representing a company or product.

SM (Service Mark) – If you take your Brand to the US, you will have to re-apply for a US trademark. You may want to go into the market before you have applied for the trademark. The Service Mark offers your limited brand protection while you in the process of applying for the trademark.

® (Registration) – Your company or product may launch before the trademark is approved. You can use the registration symbol to shows that the trademark is pending.

Trademark protection

Why would you want to trademark elements of your Brand or even products? This will protect you from competitors, who would either want to steal your identity or create something that would be very similar to your identity or product. The perfect examples would be the Nike Swoosh Logo vs Newport Cigarettes Swoosh Logo. Nike went to court with Newport tobacco for copying and using the Nike swoosh upside, on their Menthol cigarette rebrand. Needless to say, Nike later retaliated with their limited edition Custom Air Jordan 1 "Menthol".

So let's say Mike starts a business in CBD oils he comes up with a fantastic name that is memorable and very sexy. It attracts a lot of interest and people are also impressed with his product. John, who has his little business down the road and decides to slightly change Mike's company name and changes the logo slightly. He puts up his sign, and now consumers are starting to go to John's shop because they think that it is the same as Mike's. John likes to cut corner and delivers a far lesser product to Mike's. All of a sudden Mike starts getting emails from upset customers complaining about the product. This is where Trademark law will protect Mike as he has trademarked his products and his Brand. He sues John, who now has to close his shop and pay damages to Mike. 

Make the right choice.

Now you learned about the different types of registrations, you can make an informed decision which one of the intellectual property laws can help your business. It is also a better idea that you do use a law firm that knows the different requirements for the application process as well as understanding the Hemp and Cannabis industry. I would recommend Schindlers Attorneys who dose intellectual property law and as they have been fighting the fight with regards to the legalisations of Hemp & Cannabis. 

Again, we are not lawyers, if there are factual discrepancies, feel free to send us a mail, and we will update the blog accordingly. 

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