What do you know about the correlation intellectual property protection, cannabis businesses, and IP laws?
It’s not surprising that cannabis-focused entrepreneurs have trouble getting access to information that would be vital for the durability of their brand. With things changing on the regular, cannabis businesses race to get a hold of reliable information and find a way to give their brand and ‘secret sauce’ some level of protection.
Although, the cannabis industry is young and full of promise, it can also be a source of frustration especially when safeguards meant to protect businesses is limited at best. So, what can you do in this situation? We call in an incredible attorney who specializes in everything IP Law.
This is one information-packed episode you do not want to miss!
In this episode, you will learn:
- The difference between patents, trademarks and copyrights
- How to select a strong trademark
- What intellectual property protection can you obtain by yourself (without an attorney)
Welcome to Cannabis Marketing Live — All Puff. No Fluff!
It’s hard to imagine just how much the cannabis industry has changed from something done in the shadows to one that has gained a degree of public support. Which is why it isn’t surprising that most cannabis businesses didn’t bother acquiring any level of protection for their brand.
But with regulations slowly evolving, people are starting to take notice and see cannabis as a formidable industry. We can’t help but wonder if the same protections for common businesses can be applied in the cannabis space.
I wanted to get some clarity on this and I bet that you do, too. So, I’m really so excited to see how much we can learn from our guest!!
Getting to know our featured guest
Sheila Gibson is a remarkable patent and trademark attorney and founder of Aura IP Law – which focuses on helping cannabis businesses and entrepreneurs obtain meaningful intellectual property (IP) protection at both the state and federal level. In dedicating her practice to cannabis specifically, she closely monitors federal and state cannabis laws in order to navigate intellectual property barriers to protection for cannabis plants, products, and processes.
Sheila’s career in Intellectual Property (IP) began when she served at a nationally recognized IP boutique, she also practiced at several top-tier law firms over her first 16 years as an attorney. She has worked with clients in many different industries, such as: agriculture, biotech, medical devices, green technology, sports innovation, and more. Sheila has counseled clients at the research and development stage to startups, to small- and medium-sized businesses to larger publicly traded companies.
She has advised her clients in all aspects of IP, including patents, trademarks, copyrights, branding, licensing, IP transactions, IP agreements, opinion work, due diligence, and product launch.
In addition, having received exposure to all aspects of intellectual property including some of the most complex prosecution, litigation, and transnational issues at her prior law firms, she learned to approach each matter with big-picture thinking that includes an eye toward global strategy and avoiding possible future pitfalls and/or litigation.
Now, free from the constraints of Big Law, she is able use her unique skill set and approach to provide more efficient and tailored legal services for her clients.
Intellectual Property Protection, IP Laws, and How It Can Affect Your Cannabis Business
Intellectual property protection seem to only apply to goods that are lawful and regulated. It used to be limited to industries such as food, fashion, medicine, and the like. Now that the cannabis industry is getting regulated and examined, it’s beginning to crossover into greener pastures. This means that you can get some protections in place to safeguard your brand, products, and services.
Sheila posed a great point during our conversation, if we had the opportunity to protect our brand under the law, then we should consider it – after all, it is a great investment, one that will save you from headaches in the future.
“Why wouldn’t you want to protect your brand right now?”– Sheila Gibson
What is intellectual property?
Just as there are properties that are meant to recognize ownership of certain things such as land and other similar possessions, Intellectual Property are intangible creations born from the human mind. There are different types of intellectual property and, oftentimes, the degree of protection for each type varies from country to country.
What are the different types of intellectual property?
The beauty of intellectual property and having it categorized into different types is that it acknowledges the value of ideas and how much it can revolutionize how we interact with the world.
This is an intellectual property that grants owners exclusive rights to use their original work for a set amount of time.
Ex. books, songs, photographs, etc.
A trademark is an intellectual property that uses distinct and recognizable representations a particular person or organization.
Ex. the scent of Playdoh, Apple logo, Christian Louboutin red heels, etc.
Trade secrets is just as its name implies, they are the secret sauce of how a person or an organization creates or conducts their business. It can be in form of a formula, use of certain instruments, protocols, and other confidential information that have economic value.
Ex. Even though Coca-Cola and Pepsi are both sodas, they have their own distinct flavor – that is their trade secret.
A patent is an intellectual property protection that gives the owner a legal right to exclude others from making, using, and/selling their invention. Much like how copyright works, a patent is also enforced for a limited amount of time. It’s also worth noting that a patent that has been applied is only enforced in the country where it was granted, to get other countries to abide by this law, you will need to apply in each of the countries or in regional patent offices. U.S. utility patents generally last for 20 years, and once that lapses, the owner needs to file another patent application to keep it from falling into the public domain.
Ex. Spanx and spanx products.
Tips on how to select a strong trademark
Shiela strongly advises against doing the trademark protection process yourself. There are a lot of things to consider and an attorney who specializes in intellectual property protection would be able to walk you through and give you better insight.
- Don’t register generic terms.
- It should have an acquired distinctiveness.
- You can make it suggestive, so people have an idea of what your brand is about.
- Fanciful trademarks can also work to your advantage, these are made up words that only have meaning when it’s tied to your brand. (Ex. Kodak, Tesla, Pepsi, Adidas)
- Coincidentally, you can also opt to use arbitrary marks, which is a symbol that has nothing to do with your brand, products, or services. (Ex. Dove, Sharp, Apple)
“This is about competitive edge, we want you to let you protect your name, but we’re not going to let you take language that your competitors need to use.”– Sheila Gibson
Intellectual Property (IP) Protection Insights
Here are some suggestions from Sheila Gibson about what sort of intellectual property protection you can obtain by yourself and how to know when you need an IP lawyer’s help.
- You can file your own copyright protection.
- Make sure you include a Ⓒ in your publication, the name of the person or entity who owns it, and the year of when it was first published..
- Add markings to your content (e.g. photographs, blog posts, etc.)
- Once your copyright has been filed, the next step is registration (a.k.a Registered Copyright). Registering isn’t an automatic process, you need to file it separately and only costs $65. Don’t worry though, the forms are pretty easy to fill out!
- You cannot sue for copyright infringement if the content in question is an unregistered copyright. This is why Shiela highly recommends having it registered, especially when the content has artistic value.
“Make sure you talk to an attorney before you disclose. Once you publicly disclose, you start to lose some rights and some abilities to protect it. If you publicly disclose, you lose your foreign right (protecting outside of the US).”– Sheila Gibson