The (POT)ential Business Strategy: under Intellectual Property

In the event that marijuana is legalized, meaning federally (the law of the land that controls and actually matters) there will be some crucial business moves to be made by producers, growers, dispensaries, etc. Seeing as the the Department of Justice is allowing states and medical marijuana dispensaries to operate free from federal enforcement, it’s only a matter of time before the shift is made to legalizing marijuana completely. And, there will be a boom of business and businesses.

There are several concerns on the intellectual property front that I believe will be crucial in allowing certain business entities to prosper in the hyPOThetically burgeoning business of distributing marijuana. (I wonder if it will be in the pharmaceutical realm, as a drug, or create it’s own lane, like alcohol and tobacco. Probably the latter.) Image

Patent Issues

Growers and breeders of marijuana have been cross-pollinating, finding artificial environments to grow, and genetically engineering a myriad of plants, which instinctively creates botany patents (not the actual name, but it will suffice), and business methods patents. (Trade secrets are a great way to protect company secret, so long as no one else it.) The interesting issue is who will be able to gain ownership of such items, when these items are all over the black market? Well, the US Patent and Trademark Office will have to sort through those matters, but with the America Invents Acts creating a first to file rule, I’m guessing those diligent enough to file patents first, will be the rightful owners.

Or, it may be that the products that are already in the [black] market, will be considered in the public domain. Therefore, certain business methods of growing and storing marijuana will not be able to be patented under the Business Methods section either. Thus, growers and other businesses will have to think more critically, from a patenting perspective, for future strands and business methods. On the other hand, it may be worth the effort to attempt patenting certain strands just to see what the courts will decide, while creating precedence on the matter. Who knows–someone could get lucky and attain ownership.

Currently, the only item patented in the marijuana universe is a prescription drug called Marinol™. 

Trademark Issues

Most cool names like, weed, dank, kush etc. (too many to name), won’t be subject to trademark protection as certain names are quite generic, at this point. Plus, some just describe the type, not the brand name. Therefore that won’t be “trademarkable,” but it will be cool to see the business names and slogans that are subject to trademark. It will be interesting to see. (Read up on the Lanham Act)

Geographical Indications and Certification Marks

Another cool aspect of the potential IP related issues will be the ability for states and countries to create geographical indicators for marijuana grown in particular places that are synonymous with having good shit marijuana, like Afghanistan, California, Jamaica, and Amsterdam (or The Netherlands). Kind of like the way you can only call sparkling wine from France, Champagne.  

Certain organizations that are sure to form within the industry may create a certification mark that businesses will want on their product, making their product seem more legit than others. This will be necessary because, like any successful industry there will be counterfeit products, and gray and black market goods that may attempt to dilute brands and cause confusion.

Enforcement

This is gonna be the big one. Obviously, there will be the same enforcement system in play that is currently in affect for legitimized businesses such as Customs and Border Protection, Federal Trade Commission, International Trade Commission, and the Food and Drug Administration to name a few. Not only that, but people and entities will have the ability to enforce their patents and trademarks in the court of law to receive damages from infringers. But, I also think that with this being an industry with such a huge black market, there may be the potential for jail time for violators of the law as such is the case with people who sell illegal items like guns and prescription drugs. Thus, the government can still put people in jail. Something they love so much.

Finally

Like anything, there will be an adulteration of the product, potentially making it less desirable. The marijuana industry will have to look to the wine industry to serve as a model for how to protect their IP. Lawmakers. Lawyers and Business people alike should look to the transition period from the ending of the Prohibition era to help provide an indication of what to expect. But, so much is different now from then. Moreover, this may put an end to the madness of the Mexican cartel violence. Those folks will have to make the segue to being a legit importer of a product. Those international importers have cause for certain in the fact that some of the best stuff is being grown in the US. So much of the “medical marijuana” is on the street now as it is. Therefore, it is possible that the domestic industry could render the international product obsolete, unless Americans get lazy like we did with automobiles. The great thing about this concept is it will do wonders for the government and private sector.

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