What Does the Revised Definition of Hemp Mean for Trademarks?

Trademarks are generally recognized as an essential and major component of each company’s economic value.[1] In fact, a well-recognized report indicates that company trademarks and other intellectual property assets represent 90% of the market value of businesses included as part of the S&P 500. In recent years, larger cannabis companies expanded their brands to reach consumers in several states while new market entrants introduced thousands of unique company names and product brands.  If these events occurred in a sector other than the cannabis industry, market participants would flock to the United States Patent and Trademark Office (“USPTO”) to register their highly valuable trademarks. However, national brand registration for state licensed cannabis companies is still prohibited as a matter of USPTO policy. Even though medical cannabis has been legalized in 42 states and the District of Columbia, for the most part the USPTO still refuses to register the marks associated with these companies and their offerings. For a mark to be eligible for registration with the USPTO, the goods or services associated with the brand must be legally offered for sale in interstate commerce, and such use must be lawful under federal law.[2]

Prior Prohibition of Both Marijuana and Hemp Marks

Since the enactment of the Controlled Substances Act in 1970 (“CSA”), cannabis (or “marihuana”) has been classified under the CSA as a Schedule I substance. Schedule I substances are limited to those substances that are deemed to have no accepted medical use, a high potential for abuse and cannot be used safely. The original CSA did not expressly designate hemp or hemp-derived products as an exception to the set of Schedule I “cannabis” substances. As a result of the legal framework provided under the CSA, the USPTO lacked clear Congressional guidance as to how it might register marks associated with hemp-related goods or services.     

During the early 2010s, when the country was seeing its first wave of state‑level recreational cannabis legalization, the Agricultural Act of 2014 (commonly known as the “2014 Farm Bill”) as adopted by Congress created a narrow exception that allowed states to establish and maintain their own hemp research and pilot programs. Hemp cultivated under such limited programs could now be grown, processed, and marketed for research purposes in compliance with federal law. Due to the 2014 Farm Bill, several USPTO applicants sought to register hemp-related marks under the theory that certain hemp-related activities were now lawful under federal law. During this time, many of these applicants received initial refusals on the determination that the subject goods involved unlawful business activities under the Controlled Substances Act. If the goods or services identified in the relevant application did not explicitly reference specific offerings that violated the CSA, the USPTO issued follow-up questions to determine whether the applicant offered goods and/or services that could directly or indirectly be prohibited under the CSA. The USPTO also rejected applications to register ingestible hemp-related offerings on the ground that the goods in question have not yet been approved by the U.S. Food and Drug Administration (“FDA”). The USPTO’s treatment of hemp-related trademark applications during this time resulted in inconsistent results, with most applications being refused. At this time, there was an active national market for ingestible nutritional supplements made with cannabidiol (“CBD”), a non-intoxicating compound found in cannabis and sold openly in health‑food chains, boutique wellness stores, and on online platforms with no state‑level restrictions. Nevertheless, the USPTO’s examining attorneys and its administrative court, the Trademark Trial and Appeal Board (“TTAB”) still applied the lawful use requirement in a direct and consistent manner to marks used for hemp and/or marijuana-related offerings. Cannabis‑related goods and services that touched the CSA stayed outside the federal trademark system, leaving brands to compete in a crowded state‑level marketplace where imitation and overlap were common risks.

2018 Farm Bill Creates Path to Registration for Certain Hemp-Related Marks

For brands still seeking protection in December 2018, the newly enacted 2018 Farm Bill opened the door to federal trademark protection for hemp and certain hemp-derived products by removing “hemp” from the Controlled Substances Act’s definition of marijuana and defining hemp as:

[…] the Cannabis sativa L. plant, and any part of that plant (including seeds and derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers), so long as it contains no more than 0.3 percent delta-9 THC on a dry weight basis.

However, regarding ingestible hemp-derived goods, the statute explicitly states that "nothing in this subchapter shall affect or modify" the Federal Food, Drug, and Cosmetic Act (“FDCA”) or "the authority of the Commissioner of Food and Drugs and the Secretary of Health and Human Services" to regulate hemp products.[3]

Under the FDCA, it remains unlawful to introduce hemp-derived THC or CBD into the food supply or market these compounds as dietary supplements or medicines unless the products have undergone the FDA drug approval process. Currently, the FDA has not approved a marketing application for cannabis to treat any disease or condition, but has approved the following four prescription drug products: (i) Epidiolex (cannabidiol; cannabis-derived) approved for seizures associated with Lennox-Gastaut syndrome or Dravet syndrome (patients age 2+); (ii) Marinol (dronabinol; synthetic THC) approved for chemotherapy-induced nausea/vomiting and anorexia associated with weight loss in AIDS; (iii) Syndros (dronabinol; synthetic THC) approved for the same therapeutic uses as Marinol (chemo-related nausea/vomiting; AIDS-related anorexia); and (iv) Cesamet (nabilone; synthetic cannabinoid related to THC) approved for chemotherapy-induced nausea/vomiting.

All therapeutic claims for hemp or CBD products without FDA approval are not legal under federal law. Meanwhile, hemp used for manufacturing or in the food industry is legal for import and sale, provided it meets federal processing standards.[4]  The FDA has explicitly said that three hemp seed-derived ingredients can be used in human food under the evaluated GRAS notices: hulled (dehulled) hemp seed, hemp seed protein powder, and hemp seed oil. Non-ingestible hemp products, such as those used in textiles, fabrics, paper, soaps, shampoos, lotions, and cosmetics, also face fewer regulatory barriers, though they still remain subject to general FDCA requirements.[5] Cosmetics must be non-adulterated and non-misbranded, and therapeutic claims will pull the product into drug territory. As such, the lowest-friction cosmetics are those using hemp seed oil, not CBD. In other words, “hemp-derived” is not a universal safe harbor, and in terms of trademark protection, the 2018 Farm Bill created a narrower federal path to registration than many market participants expected.

USPTO Examination Guide 1-19

In response to the uncertainty created by the 2018 Farm Bill regarding the ability to register hemp-related marks, the USPTO issued formal guidance in 2019 explaining its revised process for evaluating hemp-related applications under the lawful-use doctrine. USPTO Examination Guide 1-19 (“Guide 1-19”) exists to tell examining attorneys, applicants, and the public how the USPTO will apply the “lawful use in commerce” requirement to cannabis and cannabis-related goods and services after the 2018 Farm Bill.[6] It reiterates that the USPTO will refuse to register marks where the identification of the applicable goods or services offered under the mark shows a clear violation of federal law, even if the activity is lawful under state law, and it frames the analysis around the CSA, the FDCA, and the 2018 Farm Bill. 

For goods, Guide 1-19 reiterates that CBD is encompassed within the CSA’s definition of marijuana. Absent a Farm Bill pathway, goods that encompass CBD or marijuana extracts remain unlawful under federal law and cannot support registration. The 2018 Farm Bill created a narrow carve-out by removing “hemp” from the CSA’s “marijuana” definition, but only for Cannabis sativa L. and derivatives with a delta-9 THC concentration of not more than 0.3% on a dry-weight basis. The Guide specifies that for applications filed on or after December 20, 2018, the CSA may no longer be a refusal ground if the goods are hemp-derived, provided the identification is drafted to specify compliance (less than 0.3% delta-9 THC), and any resulting registration is limited to federally compliant goods. Marijuana-derived goods (more than 0.3% delta-9 THC) remain refusable regardless of filing date.

For pre-December 20, 2018 filings, Guide 1-19 states that such applications are still refusable because the use or intent was unlawful at the time of filing, but the USPTO provides applicants with an option to cure this problem. If the owner of a hemp-related application that was pending as of the date on which Guide 1-19 was adopted amends: (i) its application filing date to December 20, 2018; and (ii) the basis of the application from one seeking to register the mark on the ground that it is currently being used lawfully in United States interstate commerce to an “intent-to-use application under which the applicant has a bona fide intent to commence such use in the within the foreseeable future; and (iii) the identification of its offerings to the hemp-compliant scope, the USPTO’s Examining Attorney will then conduct a new registrability analysis based on the revised application date and terms.

For hemp-related services under Guide 1-19, the same CSA distinction (marijuana versus hemp) applies: services involving marijuana remain refusable, while services involving hemp can proceed if the identification specifies the involved cannabis is hemp (less than 0.3% delta-9 THC) and, where refused, applicants have the same amendment-versus-refile options described for goods. For hemp-related cultivation services, the USPTO will also inquire into the applicant’s authorization to produce hemp under a state-approved plan. Guide 1-19 also stated that, as of the Guide’s issuance, USDA had not yet promulgated regulations or approved plans, while allowing certain continued operations under 2014 Farm Bill authorities during the transition.

Hemp Marks Registered by the USPTO under Guide 1-19

USPTO trademark filing activity since January 1, 2019 shows sustained brand investment across multiple hemp-adjacent product and service categories. After the USPTO issued Examination Guide 1-19, many applicants amended identifications for their pending applications to specify hemp-derived goods with no more than 0.3% delta-9 THC (or similar “hemp as defined in the 2018 Farm Bill” language) to satisfy the USPTO’s lawful-use requirements, though the exact wording varied. Using USPTO Trademark Search “expert mode” and searching the identification of goods/services for “hemp,” “CBD,” “cannabidiol,” “hemp-derived,” or “hemp extract” we identified 15,612 hemp-related applications filed on or after January 1, 2019. Of those filings, 6,882 are live, and 8,730 are dead (approximately 44% live / 56% dead). Notably, “dead” status reflects inactive records (e.g., abandoned applications or lapsed/canceled registrations) and should not be read as synonymous with USPTO “rejections” in every case. [7]

Looking specifically at registrations issued since January 1, 2019 within these same categories (registration-date filtered, with class-tailored product/service term sets), registrations are concentrated in Class 003 cosmetics/personal care (1,782 registrations), followed by Class 034 smokable/tobacco-substitute and “hemp flower” terminology (911), Class 005 pharma/supplement/medical-type goods (867), and Class 035 retail/online retail and wholesale services (745). Class 032 beverages (269) represent the smallest volume of hemp-related registrations among the classes reviewed.

One plausible driver of the comparatively lower beverage registration volume is the “lawful use in commerce” overlay in federal trademark practice, combined with the continuing regulatory friction for ingestible cannabinoid products relative to topical personal-care goods and certain service models.

In practice, this situation could translate into narrower beverage identifications, more frequent office-action disputes over whether the identified goods can be lawfully sold in interstate commerce, and a higher likelihood that applicants abandon or refile rather than carry a beverage application through to registration.

2025 Revised Definition of Hemp

A dizzying number of cannabis policy shifts have occurred between 2024 and 2025. Congress moved to rewrite the hemp definition as they realized it had unintentionally allowed the rise of intoxicating hemp derivatives such as delta‑8 THC, delta-10 THC, and THCA. Proposed updates in both the House 2024 Farm Bill and the Senate 2024 Farm Bill sought to close this “loophole”, with the Senate draft explicitly replacing “delta‑9 THC” with “total THC” in the 0.3 percent limit.

Congress went even further in 2025, passing amendments to the 2018 Farm Bill as part of broader federal legislation. The changes to the statutory definition of hemp under the 2025 Continuing Budget Resolution (H.R. 5371), effective November 12, 2026, will redefine "hemp" to include cannabis with a total tetrahydrocannabinols (THC) concentration of not more than 0.3% on a dry weight basis, including tetrahydrocannabinolic acid (THCA).[8] The revised hemp definition resets what applicants can plausibly claim as “hemp” by the effective date. Products excluded by the new definition “are not to be deemed hemp products” and instead are subject to CSA regulation “as marijuana.”

Additionally, the new definition explicitly excludes certain seeds, intermediate and final hemp-derived cannabinoid products containing synthetic cannabinoids, and products with 0.4 milligrams or more combined total THC and other cannabinoids per container. These shifts intensified USPTO scrutiny of hemp and cannabinoid identifications, especially where synthetic or chemically converted cannabinoids are involved, because such substances no longer qualify as “hemp” under federal law.

Thus, it can be reasonably expected that a total THC (including THCA) standard is likely to produce: (i) more office actions requesting a narrowing or clarification of the offerings stated in the initial application; (ii) more abandonments/refiles when applicants cannot support compliant, sale-ready identifications; and (iii) more strategic pivoting toward topicals (Class 003), non-ingestible goods, and retail/service marks (Class 035) where applicants can more readily align their identifications and specimens with federal-law constraints.

Need for Revised Guidance

The revised federal definition of “hemp” is no longer a simple delta-9 THC screen. It turns on “total tetrahydrocannabinols,” expressly including THCA, and it also captures “any other cannabinoids” with similar effects, or marketed to have similar effects, as determined by the Secretary of HHS. That design makes trademark eligibility a moving target. It can shift through agency designation, even if trademark law itself does not.

That uncertainty is exactly why USPTO Examination Guide 1-19 needs to be updated. The Guide’s drafting instruction is rooted in the 2018 Farm Bill paradigm, and applicants typically addressed compliance by stating that the 0.3% delta-9 THC threshold applies to the identification of their offerings. After November 12, 2026, that shorthand will be incomplete. A revised Guide should tell applicants what the Office will treat as sufficient in an identification of hemp under those new concepts, and how it will approach the HHS “similar effects” category.

Meanwhile, federal cannabis policy is still moving on parallel tracks. The December 18, 2025 Executive Order directs DOJ to complete the Schedule III rescheduling process, but it does not itself reschedule marijuana.[9] None of this solves the FDCA issue that drives many refusals. The FDA continues to state that it is illegal to market CBD by adding it to food or by labeling it as a dietary supplement under current law.[10] Even if rescheduling ultimately occurs, it still does not create a trademark pathway for ingestible THC or CBD products. The gating issue for these categories is a lawful route under the FDCA. Rescheduling may narrow certain CSA‑based refusals for non‑ingestible hemp products containing no more than 0.3% total THC, but applicants will continue to face the full range of compliance obligations under federal, state, and local law.

Across both marijuana-related and hemp-related markets, similar brand names are routinely used by unrelated businesses, creating consumer confusion about who actually manufactures a given branded product. This situation is the specific scenario that a national trademark registry is designed to prevent. Market participants are further challenged because they do not know whether, when or how the USPTO will revise Guide 1-19. Given that the USPTO adopted Guide 1-19 shortly after Congress passed the 2018 Farm Bill, it seems very appropriate for the USPTO to adopt and publish this year revised guidance that reflects recent legislative developments. 

Navigating the New Uncertainty

The rapidly shifting federal treatment of hemp, cannabinoids, and marijuana has left brand owners navigating a regulatory landscape marked by gaps, delays, and evolving definitions. Against this backdrop, companies may want to consider: (i) filing additional USPTO trademark applications for products that are compliant with the 2018 Farm Bill and otherwise now lawful under federal law; (ii) filing new applications for marks that comply with the revised definition of hemp; (iii) filing trademark applications with states in which the applicable mark is being used; and/or (iv) otherwise begin planning for the operational and trademark implications of Congress’ December 2025 amendments well before they take effect in November 2026.

While future statutory or regulatory shifts may change how new applications are examined, the USPTO has not issued any bulletin announcing a categorical program to cancel existing hemp-related registrations solely because of changes to the hemp definition. As a result, there is a valid argument that previously registered marks may retain their place on the register, subject to the ordinary rules on maintenance, use, and challenge. As such, for hemp companies whose goods are lawful under federal law at the time of filing, there may be a bona fide incentive to file new use in commerce applications as quickly as possible. Early federal filings can secure priority and reduce the likelihood of later conflicts in a market where similar branding is common, and consumer confusion remains widespread.

Hemp-compliant and topical-only companies should focus on confirming chemical compliance (≤ 0.3% total THC) and ensuring that any cannabinoids used are naturally occurring. Their next steps will likely involve tightening trademark identifications, maintaining contemporaneous compliance documentation, and considering intent-to-use filings for future product categories that may qualify once the legal landscape stabilizes. These companies can generally continue federal filings, provided the goods remain lawful under both the CSA and (if applicable) the FDCA.

Brand owners should also keep in mind that federal registration is not the only trademark tool available. The USPTO itself notes that rights can be pursued through common law use and through state trademark registration, and its registration toolkit specifically encourages clearance searching for state registrations and unregistered marks. In parallel, companies can continue to pursue federal registrations for cannabis-adjacent offerings that do not violate the CSA, including Farm Bill-compliant hemp goods that satisfy the USPTO’s lawful-use framework, as well as ancillary services and non-plant-touching offerings such as education and training, business consulting, marketing and advertising, software and technology services. The federal registrability of hemp-related marks will likely continue to evolve in 2026, so brand owners should revisit this issue throughout the year to determine whether and how they should revise their plans.

Special thanks to Regulatory Compliance Strategist Jessica Kaiser for contributing to this article.