You are here

Well, “high” there … What trademark owners need to know about the new Cannabis Act

Share

October 17, 2018

Today marks a historic moment in Canada – the consumption and sale of recreational marijuana is now legal.

The stated purpose of the Cannabis Act is to protect public health and safety, including protecting youth by restricting their access to cannabis.

Many companies have been busy preparing to enter the recreational marijuana market in Canada. For any business that wishes to sell products or provide services, protecting key trademarks is an essential step to success. When it comes to the Cannabis Act, there are certain provisions (in the Act and the associated Regulations) which are specific to cannabis, cannabis accessories, and services related to cannabis. For simplicity, all of these items will be referred to in this article as “cannabis”. Here are some of the more critical aspects of the new laws that brand owners need to be aware of.

No promotion to young people. Cannabis cannot be promoted in a way that could reasonably be believed to be appealing to a young person, defined as anyone under the age of 18. Further, so-called cannabis “brand elements” (trademarks, logos, etc.) cannot be displayed on non-cannabis items associated with young people, or which could reasonably be believed to be appealing to young people. Packaging and labelling must also be unappealing to young people. Take-away: Owners of cannabis brands must carefully consider their promotional strategy, including what types of non-cannabis products could possibly be sold in association with cannabis-related trademarks.

No depictions of people, characters or animals. Packaging and labelling cannot depict a person, character or animal, whether real or fictional. Take-away: When developing a cannabis-related trademark, these types of portrayals should be avoided.

No excitement please, we’re Canadian. Any promotion of cannabis cannot be presented in a way that evokes certain ways of life, such as those which include glamour, recreation, excitement, vitality, risk or daring. The same restriction applies to cannabis-related brand elements, even if these are not used directly with cannabis. Take-away: Owners of cannabis brands cannot use these brands in a way that would evoke a glamourous or exciting lifestyle.

No promotion outside of Canada. Cannabis and cannabis-related brand elements cannot be promoted in a publication that is published outside Canada or in a broadcast or other communication that originates outside Canada. Take-away: Careful consideration must be given to which channels are used to promote cannabis trademarks.

Not too big. The brand name of the cannabis product must be included on the packaging label, but it must be displayed in a type size that is smaller than or equal to the font used for the stipulated health warning message. The brand name can only be displayed once on the principal display panel (or once in each language for panels that are in English and French). There are other restrictions relating to the colour of the brand name. Take-away: When choosing a cannabis-related trademark, consider names that are not too long, in view of the size constraints.

Not metallic or fluorescent. A brand owner can choose to also use a brand element other than the brand name on cannabis packaging. As with the brand name, any brand element can be displayed only once on the principal display panel (or twice if the panel is bilingual). A brand element must also be displayed in a size that is smaller than or equal to the standardized cannabis symbol or in a font that is smaller than the health warning message. Brand elements face similar restrictions in terms of colour, in that they cannot appear in colours that are metallic or fluorescent. Take-away: Brand elements other than the brand name should not be too large, in view of the size constraints.

No cleaning out the attic. The Regulations stipulate that licensed distributors of recreational cannabis must retain samples or copies of each distinct package and label for cannabis products that have been sold. Such samples must be kept for at least two years. Take-away: This is a good way to keep historical evidence of trademark use. We recommend that all trademark owners keep archives of how their trademarks are used over time, as such evidence can be relied upon in the event that a trademark is challenged for non-use.

Not just words and images. Also of note, significant changes to the Trademarks Act are expected to be implemented in a few months. Under the new laws, trademarks can be obtained for scents and tastes. Take-away: Cannabis producers may wish to take advantage of these new provisions to try to protect specific cannabis scents and tastes.

These are just some of the factors that those in the cannabis industry should consider when selecting and protecting cannabis-related trademarks, and when selling or promoting cannabis. For further information on how to best protect your cannabis brand, please contact Stephanie Chong at schong@hofferadler.com.