Trade marks are currently being accepted for registration in Australia by the Trade Marks Office in relation to both medical and recreational cannabis and marijuana, and related services.
Australian trade mark law prohibits the registration of a trade mark if its use would be contrary to law. Previously, the promotion and sale of cannabis or marijuana for any purpose was illegal in Australia, and trade mark applications claiming cannabis and marijuana were rejected because these products were illegal and therefore contrary to law. However, the Narcotic Drugs Amendment Act 2016 (Cth) has made changes to the law in Australia so that the production of cannabis or cannabis resin (or the cultivation of cannabis plants for that purpose) is allowed for medicinal or related scientific purposes (through a national licensing scheme).
Although the recreational use of cannabis and marijuana remains illegal in Australia, it appears that the recent practice of the Trade Marks Office has been to allow the registration of trade marks for cannabis and marijuana that do not specify whether the goods or related services are for medical purposes. We have also observed trade mark registrations where the goods have been described as “recreational cannabis products”, or the goods have been edibles containing cannabis/marijuana or their extracts/derivatives. However, despite the existence of these trade mark registrations, there remains the possibility that an objection may be raised against an application if the Trade Marks Office considers that the registration of the mark in relation to cannabis or marijuana for recreational use would be for the promotion of illegal activity, and therefore contrary to law.
If you require any further information about trade mark rights in relation to cannabis and marijuana in Australia, please contact us.
By Erin Cassidy