In re Morgan Brown

Brief Fact Summary.

Appellant seeks to register his mark, Herbal Access. The Trademark Examining Attorney denies the registration on the grounds that the mark is a per se violation of law.

Synopsis of Rule of Law.

If a mark is a per se violation of law, the mark must not be registered.

Facts.

Morgan Brown, sought to obtain a Principal Register for the mark, Herbal Access, for a retail store featuring herbs. The Trademark Examining Attorney denied Brown’s registration on the grounds that the herbs Brown was offering for sale includes marijuana, an illegal substance.

Issue.

Whether the Trademark Examining Attorney erred in denying Brown’s registration.

Held.

No, the Trademark Examining Attorney did not err in denying Brown’s registration.

Discussion.

To obtain a federal mark registration the mark must be lawful under federal law unless “(1) a violation of federal law is indicated by the application record or other evidence, such as when a court or a federal agency responsible for overseeing activity in which the applicant is involve, and which is relevant to its application, has issued a finding of noncompliance under the relevant statute or (2) when the applicant’s application-relevant activities involve a per se violation of law.†Here, the Trademark Examining Attorney relies on the fact that marijuana is illegal, and therefore, the mark is a per se violation of law. On the applicant’s, Brown’s, website, a photo contains a green cross, which has become the symbol for the organized medical marijuana industry, and displays photos of marijuana with the wording “Marijuana For The Masses.†Overall, the court finds that based on the following facts, the mark constitutes a per se violation of the Controlled Substances Act, and the registration was properly denied.