The immediate impact of the decision is a reduction in certainty for CBD firms – not something they need at a time of significantly heightened uncertainty in other areas.
The action means that it is now degrees more difficult for companies to protect trademark and brand IP for CBD food, drink and supplement items. For these categories, companies will now have to switch to a passive defence – hoping that other laws on deceptive trade practices and related areas provide adequate cover, instead of actively protecting intellectual property (IP) through registering a trademark.
For broader brands, trademarks in other categories, such as cosmetics, could provide some latent protection. And the situation should change when the US Food and Drug Administration (FDA) makes its legal path to market for food, drink and dietary supplement products containing CBD. But for now, it remains yet another reason for why the sector is unlikely to see large scale forays by major fast moving consumer goods (FMCG) brands at any time in the near future.
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