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Rejecting Attack on USPTO's "Legal Use" Requirement, TTAB Upholds Refusal to Register NATURAL LEAF CBD for Supplements

In this appeal, Applicant NL LLC conceded that the sale of its CBD-infused supplements (under the mark shown below) would be per se unlawful under federal law. However, it argued that the Lanham Act does not specify that the required "use in commerce" must be lawful, and further that use of its mark is legal under Colorado law and therefore comports with all requirements for federal registration. The Board handily rejected NL's arguments and affirmed the refusal to register under Sections 1 and 45 of the Lanham Act. In re NL LLC, Serial No. 87864999 (September 25, 2020) [not precedential] (Opinion by Cindy B. Greenbaum).The Board found NL's goods to be per se unlawful under Sections 321(ff) and 331(ll) of the Food, Drug, and Cosmetics Act (FDCA) because they comprise food to which a drug (CBD) as been added; substantial clinical investigations of CBD have been instituted, and the existence of these investigations has been made public; and there is no evidence that CBD was marketed in food before the substantial clinical investigations of CBD were instituted...continue to full post

Full post as published by The TTABlog on September 28, 2020 (boomark / email).