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Journal of Intellectual Property Law

Abstract

The conflict between state and federal laws regarding the cultivation and sale of recreational marijuana results in inconsistent application of trademark protections between state and federal governments that could cause conflict with the United States’ treaty obligations under the TRIPS agreement. Whereas the federal government categorically denies trademark protections for marijuana-based products state governments protect trademarks belonging to recreational marijuana businesses through state and common law trademark protections. The United States is also obligated to ensure that foreign nationals and United States receive the same treatment regarding trademark protections under The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The possibility of states to grant and deny trademark protections could create a problem for the federal government by leaving the implementation of TRIPS treaty obligations regarding recreational marijuana solely in the hands of states. This situation potentially leaves a decision with important trade implications in the hands of the states and could lead to diplomatic disputes and potential embarrassment for the federal government. Despite the potential for conflict, the state of state and foreign law regarding recreational marijuana as well as practical diplomatic concerns will likely prevent a treaty dispute regarding recreational marijuana from ever arising. This note explores the current state of the foreign and domestic marijuana laws as well as the availability of trademark protections and then evaluates the risk of a dispute under the TRIPS agreement. Although a treaty dispute will most likely not arise based on the current state of recreational marijuana laws, the United States should assume greater control over its treaty obligations by resolving the conflict between state and federal laws regarding marijuana.

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