United States: TTAB Affirms Unlawful Use Refusal Of “PUREXXXCBD” For Plant Extracts And Supplements Containing CBD
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In a mere 5-pages, the Board affirmed a refusal to register the
proposed mark PUREXXXCBD for “Plant
extracts for pharmaceutical purposes; vitamins; dietary
supplements; all of the foregoing containing CBD solely derived
from hemp containing no more than .3% THC on a dry weight
basis” (Class 5). The Board found that Applicant AgrotecHemp
lacked a bona fide intent to use the mark in commerce because the
goods are not in compliance with the Federal Food, Drug and
Cosmetic Act (FDCA) and are therefore unlawful. In re AgrotecHemp Corp., Serial No.
88979905 (February 10, 2022) [not precedential] (Opinion by Judge
Thomas Shaw).
Applicant’s vitamins and supplements and its plant extracts
fall under the FDCA because they are intended to affect the
structure or function of humans or animals.
The FDA requires any product marketed with a claim of
therapeutic benefit and containing cannabis or cannabis-derived
compounds (such as CBD) to be approved for its intended use before
it may be introduced into interstate commerce. Because Applicant
has not made of record an NDA or ANDA for its goods, it was
unlawful for applicant to introduce such goods into interstate
commerce as of the application filing date, and remains so.
To repeat, because at the time of applicant’s filing date
the identified goods could not be lawfully introduced into
interstate commerce, applicant did not have the required bona fide
intent to use the mark in lawful commerce. See In re
Stanley Bros. Social Enters., LLC, 2020 USPQ2d 10658, *9 (TTAB
2020) (where the identified goods are illegal under the FDCA, the
applicant’s use is not in lawful
commerce).[TTABlogged here].
And so, the Board affirmed the refusal under Sections 1 and 45
of the Lanham Act.
Read comments and post your comment here.
TTABlogger comment: See also the very
recent, nonprecedential HARBOR HEMP
COMPANY decision [TTABlogged
here], also authored by Judge Shaw, which is
on all fours with this decision.
PS: the first full sentence on page 3 of the PUREXXXCBD opinion
doesn’t make sense to me.
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