December 2, 2019
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Toronto-born rapper Drake, through his company Dream Crew, has sought trademark protection in the US for an image that appears to be similar to Health Canada’s cannabis warning symbol. The Health Canada symbol, a red octagon with an overlaid cannabis leaf and the letters “THC” (which stand for tetrahydrocannabinol), is found on all recreational cannabis products containing THC sold in Canada. Based on the American trademark filing, it appears as though Drake intended to use the image primarily on clothing, including t-shirts, hats, shorts, jackets, and sweatshirts, among others.
Unfortunately for Drake, his application has been rejected by the U.S. Patent and Trademark Office (USPTO) on numerous grounds, one of which is that another company named Pineapple Express Inc. has already trademarked “THC.” The USPTO also cited Canada’s rights to the image as a reason for its denial of Drake’s application.
Via e-mail correspondence with MarketWatch, Health Canada’s Chief of Media Relations reportedly noted that “[t]he standardized cannabis symbol is protected by Crown copyright and intended to be used for public health and safety purposes only and not for private commercial means. It can be an infringement of Crown copyright to reproduce the symbol for commercial purposes without permission to do so from the copyright owner.”
The USPTO also highlighted the potential for confusion with other marks and the impossibility of using trademarks to sell goods that are not federally legal as reasons for its denial of Drake’s application. As Alison Masbury, an attorney at Harris Bricken reportedly stated, “If your intent is to sell products that violate the [Controlled Substances Act] you are not eligible for trademark protection. Their chances for overcoming that are very low.”
Drake’s dream isn’t dead yet. He and his team have six months to respond to the USPTO’s finding and address its concerns.
Authors: Amanda Bertucci and Daniela Cerrone