In re Morgan Brown
United States Trademark Trial and Appeal Board
119 U.S.P.Q.2d 1350 (2016)
- Written by Patrick Speice, JD
Facts
Morgan Brown (plaintiff) operated a retail store in Washington that sold herbal products, including marijuana. Selling marijuana was lawful under Washington state law but prohibited by the federal Controlled Substances Act (CSA). Brown filed an application with the United States Patent and Trademark Office (USPTO) to register the service mark HERBAL ACCESS, which Brown used in connection with selling herbal products. Brown’s store and the store’s website, both of which used the HERBAL ACCESS mark, advertised that marijuana was available to customers at the store. The USPTO examining attorney who considered Brown’s application denied the application on the grounds that the services to which the HERBAL ACCESS mark referred included the sale of marijuana, which was unlawful under the CSA. Brown appealed the examining attorney’s decision to the USPTO’s Trademark Trial and Appeal Board, arguing that the sale of herbal products generally is not unlawful, so registration of the service mark was appropriate, even if Brown sold some marijuana from the store in violation of federal law.
Rule of Law
Issue
Holding and Reasoning (Bergsman, J.)
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