White Paper · Cannabis · Brand & IP

Cannabis Trademarks After the April 28, 2026 Rule: Lawful Use, Medical Goods, Hemp Identifications, and Layered Protection

Federal trademark registration still depends on lawful use in commerce. The April 28 rule may open arguments for some medical goods, adult-use goods remain outside it, the USPTO has not published new cannabis guidance that we located, and the November 2026 hemp definition affects how hemp goods are identified.

By Lincoln Square Law · 10-minute read

The question the USPTO asks first

A federal trademark application under Section 1 of the Lanham Act rests on use, or a bona fide intent to use, the mark in commerce (15 U.S.C. 1051). The Act defines use in commerce as the bona fide use of a mark in the ordinary course of trade, not made merely to reserve a right in a mark (15 U.S.C. 1127). The USPTO’s Trademark Manual of Examining Procedure treats that use as requiring lawful use, so goods and services that cannot lawfully move in commerce under federal law cannot support registration (TMEP 907). When the sale or transportation of a product is regulated under an Act of Congress, the USPTO may make appropriate inquiry into compliance with that Act to determine whether the commerce recited in the application is lawful (37 C.F.R. 2.69).

For marijuana goods, the controlling federal law is the Controlled Substances Act. The USPTO’s 2019 cannabis examination guide states that it refuses registration for applications identifying goods that encompass CBD or other extracts of marijuana, because those goods are unlawful under federal law and do not support valid use in commerce (USPTO Examination Guide 1-19, May 2, 2019). A state license does not answer that question, because the analysis is federal.

What the April 28 rule changes, and what it leaves open

DEA’s April 28, 2026 final rule (91 Fed. Reg. 22714) moved three substances to Schedule III, namely marijuana, marijuana extract, and naturally derived delta-9 THC, but only for product covered by a state medical marijuana license or approved by FDA (21 C.F.R. 1308.13(g)). The same rule lets state medical licensees register with DEA (21 C.F.R. 1301.13(k)). Adult-use marijuana remains in Schedule I.

That change gives a medical licensee with a DEA registration an argument it did not have before: its goods are now a Schedule III substance handled under a federal registration. Several questions remain before that argument produces a registration, and none has been answered in published USPTO guidance that we located as of this writing.

The first is the scope of the goods. An identification that covers both medical and adult-use products, or that does not say which, describes goods that remain unlawful in part. The second is commerce. Federal registration rests on use in commerce Congress may regulate, and state medical programs are licensed and supplied within each state’s borders. Whether in-state sales under a DEA registration support the required use, and how the USPTO will evaluate it, is unresolved. The third is the Food, Drug, and Cosmetic Act. The 2019 guide treated that Act as an independent ground for refusing marks for foods, beverages, dietary supplements, or pet treats containing CBD, citing 21 U.S.C. 331(ll). A change in a substance’s schedule under the Controlled Substances Act does not by itself change its treatment under the Food, Drug, and Cosmetic Act.

A strategy for medical licensees

A medical licensee considering a federal filing should start with the facts the examining attorney will test. Confirm that the applicant is the entity holding the state medical license and the DEA registration or pending application. Draft the identification to describe only goods sold under the medical license and the registration, in terms that exclude adult-use sales. Assemble specimens that show the mark in use on those goods in the ordinary course of trade. Decide whether to file now on a use basis, file on an intent-to-use basis, or wait for USPTO guidance, and understand what each choice risks if an office action raises the open questions. An early filing date can matter in a priority dispute, but a refused or narrowed application also becomes part of the public record.

Adult-use operators should not expect the April 28 rule to change their federal position. Their plant-touching goods remain in Schedule I.

Hemp identifications after November 12, 2026

The 2019 guide addressed hemp after the 2018 Farm Bill. It defines hemp by reference to a delta-9 THC concentration of not more than 0.3 percent on a dry weight basis and states that identifications for hemp-derived goods must specify that they contain less than 0.3 percent THC. The federal hemp definition changes on November 12, 2026, under Public Law 119-37, section 781. The amended definition counts total THC rather than delta-9 alone and excludes certain products from the definition, with some provisions delayed to December 11, 2026 by Public Law 119-103, section 2019. Our briefing on the November 2026 federal hemp changes explains the new definition and its timing, and our explainer on total THC and delta-9 explains the measurement.

As of this writing, we have not located USPTO guidance on how identifications for hemp-derived goods should read after November 12. Brand owners with hemp filings should check whether their goods still meet the amended definition, whether the identification language in pending applications and existing registrations still describes lawful goods, and whether maintenance filings will require a declaration of continued use for goods that may no longer be lawful.

Build a brand map before choosing a filing route

A cannabis company often uses one name across very different activities: licensed products, apparel, media, software, events, accessories, and services. Treating all of them as one brand makes trademark planning harder. A brand map lists each mark, the entity that uses it, the goods and services attached to it, the states where use occurs, and the evidence of first and continuing use. The map should distinguish house marks from product marks, and word marks from logos, because ownership, licensing, and registrability often differ among them.

A filing for a genuinely lawful line, such as apparel, educational content, or software actually sold under the mark, may support its own registration. A filing for a token activity created only to reserve a mark conflicts with the statutory requirement that use be bona fide and in the ordinary course of trade, and not merely to reserve a right (15 U.S.C. 1127). The identification must match the real business.

State registrations and common-law rights

Federal registration is not the only source of trademark rights. Rights can also arise from use, and state trademark registration may be available for lawful in-state goods and services. Those rights are tied to the facts and geography of use, so records matter more when federal registration is unavailable or narrow. Keep dated packaging, menus, invoices, advertising, photographs of point-of-sale materials, distributor records, and launch dates for each market, organized by entity and by mark.

Clearance has to account for the same layers. A federal database search alone is not enough before adopting a new cannabis brand. Review state registrations, business names, domain use, dispensary menus, and common-law users in the intended markets.

Ownership and licensing documents

Cannabis brands are frequently developed through agencies, founders, management companies, licensors, and affiliates. Confirm which entity owns each mark, whether copyright in logos and packaging was assigned in writing, which entity controls quality, and which affiliates are licensed to use the mark. An application filed by the wrong owner can fail even when the mark is otherwise registrable.

License agreements should identify the marks, permitted goods and territory, quality-control standards, approval rights for packaging and advertising, infringement reporting, and the consequences of termination. Manufacturing and white-label agreements should say whether the supplier may reuse names, formulas, photography, or package designs. Domains and social-media accounts should sit in company-controlled accounts. Because federal and state rules keep moving, agreements should require the parties to revisit filing strategy and product classification when the law changes, rather than leaving the parties to renegotiate the whole relationship. In Illinois, revenue-share and management arrangements involving a licensed dispensary can also raise ownership-approval questions, which our briefing on cannabis ownership changes addresses.

Enforcement starts with knowing which right you hold

When a dispute arises, identify the specific right, its owner, its territory, the goods it covers, and its priority date before reacting to the other side’s demand. Keep registrations, pending applications, office actions, state filings, assignments, licenses, specimens, and dated use records in one file, and calendar renewal and maintenance deadlines. For most cannabis operators the strongest position is layered: federal registrations for goods and services that are genuinely lawful, state registrations where available, common-law evidence, contracts, domains, and copyright in creative assets.

Brand diligence in financing and sale

Before a financing or sale, list every federal and state application and registration, confirm the record owner, compare it with the entity actually using the mark, and trace assignments and licenses between affiliates. Compare the identified goods and services with the current business. A registration for apparel does not protect cannabis products. Collect demand letters, coexistence agreements, marketplace complaints, domain disputes, and settlements that limit territory or products. If the filing strategy depends on medical goods under the April 28 rule or on hemp goods that the November 2026 definition may reclassify, describe that dependency in the diligence schedule rather than listing the filing as an unqualified asset.

Federal actions that could change what can be registered

Watch for USPTO examination guidance or TMEP changes addressing Schedule III medical marijuana, USPTO guidance on hemp identifications under the amended definition, a final rule from DEA’s broader rescheduling hearing (91 Fed. Reg. 22777), and FDA action on marijuana-derived products. Each could change what can be registered.