It seems like it has always been an uphill battle for businesses in the marijuana business. Skating on the precipice of state laws, on one side, that may allow for widespread distribution of marijuana in the state, and federal laws, on the other, which criminalize such sale across state lines, owners of these businesses must tread carefully in finding the right way to expand their businesses. One obstacle facing so-called “potrepreneurs” is how to rely on certain legal protections that businesses in non-illicit fields use to stop potentially unfair business practices. Trademark registrations are one important protection, and one that businesses in the retail sector particularly lean on, especially in a product market where the products are fungible. A recent decision by the Trademark Trial and Appeal Board (TTAB) demonstrates that people in the marijuana business will need to be more strategic in how they protect trademarks.

In the case, the TTAB affirmed the United States Patent and Trademark Office’s decision to refuse registration for the mark HERBAL ACCESS for “retail store services featuring herbs” on the grounds that the mark is used in connection with a substance that is illegal under federal law. The TTAB arrived at this conclusion even after the applicant (a Washington state company) argued that the trademark application should be allowed because marijuana is legal to sell in state of Washington.

The pro-activeness of certain pop-culture icons (or, as will be apparent a little later on in this post, “imminent” pop-culture icons) never ceases to amaze me. The trademark aspirations of many of these starlets takes the whole go-getter ethos to a whole new level. Just in the past few years, we’ve seen such tendencies on full display through Taylor Swift’s campaign to register “This Sick Beat” for, well, everything under the sun, to Beyoncé’ and Jay-Z’s attempt to register  their baby’s name (“Blue Ivy Carter”) for a line of baby accessories. The latest in a line of ambitious pop star trademark registrations appears to be Angela Renee Kardashian’s (a.k.a “Blac Chyna”) filing of a trademark application to register her full married name for various advertising and entertainment services. The motivation appears to be a reality TV show that she plans to produce with her fiancé, Rob Kardashian.

The sequence of events usually goes like this: A celebrity writes a song, does a media interview, or marries another celebrity (who may or may not be famous solely because of their name). The celebrity makes some unique, whatever (or not so unique, in the case of “This Sick Beat”) that the media quickly seizes upon, spreading it far and wide. Because the celebrity is well-known, their name is associated with the unique word/comment/symbol without much effort by the celebrity him/herself. The phrase may even be incorporated into a viral YouTube video, or acquire its own hash tag, like Charlie Sheen’s #winning rant (in reality, this wasn’t really a winning trademark strategy as Sheen hasn’t yet obtained his registration). Either way, the celebrity will have no problem acquiring the goodwill that other trademark owners may have to pay hundreds of thousands (or millions) of dollars to acquire.