For more than a decade, state-licensed cannabis businesses have built brands the hard way. They designed logos, printed packaging, bought billboards, and earned customer loyalty, all while the federal government treated their core product as contraband. One consequence of that status got very little attention outside of intellectual property circles: a cannabis company could not obtain a federal trademark registration for its own name. That has now changed for part of the industry, and the change carries a risk that most operators have not thought about. If you do not act, someone else may register your name first, and federal law may let them keep it.
What actually changed on April 22, 2026
On April 22, 2026, the Acting Attorney General signed a final order moving two categories of marijuana from Schedule I to Schedule III of the Controlled Substances Act: FDA-approved marijuana products, and marijuana handled under a state medical marijuana license. The order took effect immediately and was published in the Federal Register on April 28.
The practical mechanics matter here. A Schedule III drug can be lawfully manufactured, distributed, and dispensed, but only by a business that holds a DEA registration. The DEA opened an expedited registration portal for state medical licensees on April 29 and treated a valid state medical license as sufficient proof of authorization, absent a public-interest problem. Operators who applied by the June 22 deadline were allowed to keep operating while DEA processed their applications.
Two limits are important. First, adult-use marijuana stays in Schedule I. A hearing on rescheduling all marijuana began June 29, but no decision has been issued. Second, the order did not authorize interstate commerce in marijuana. Missouri medical products still cannot be shipped to Illinois or Oklahoma.
So the honest summary is this: a state-licensed medical marijuana business with a DEA registration is, for the first time, selling a federally lawful product. An adult-use operation, or an unregistered medical operation, is not.
Why that sentence changes trademark law for you
The United States Patent and Trademark Office has a rule it calls the lawful use requirement. To register a trademark federally, the applicant must be using the mark in commerce that Congress can regulate, and the USPTO has long held that use must be lawful under federal law. Beginning around 2016, the Trademark Trial and Appeal Board applied that rule to refuse registrations for marijuana products and dispensary services in a line of decisions involving JJ206, Morgan Brown, and PharmaCann. It did not matter that the applicant was fully licensed by its state. The specimen showed a Schedule I drug being sold, so the use was not lawful, so no registration.
Cannabis companies adapted. They registered marks for hats, lighters, and “educational services,” obtained state trademark registrations, and relied on common-law rights within their home markets. That patchwork worked reasonably well as long as nobody could get the real thing.
Now a DEA-registered medical operator can make a credible argument that its use of its mark on medical marijuana is lawful use in commerce. Practitioners began filing applications within weeks of the April order. The USPTO has not yet issued updated examination guidance, and the first of those applications are still working through examination, so nobody should promise a client a registration today. But the door is open, and the people walking through it first will hold the earliest priority dates.
How you can lose your own name
This is the part operators find hard to believe, so it is worth walking through.
Federal registration confers nationwide priority as of the filing date. Under Section 7(c) of the Lanham Act, once a mark registers, the applicant is treated as if it had used the mark everywhere in the United States on the day it filed. A competitor can file an intent-to-use application before it has sold a single gram. If that application matures to registration, the competitor’s priority date is the filing date, not the date it eventually opened for business.
Your years of prior use may not count. Ordinarily, a business that used a mark before someone else filed keeps the right to use it in the territory where it was already operating. But a federal court has already held that prior use of a mark on marijuana, because it was unlawful under federal law, could not establish trademark priority at all. In the Kiva litigation in the Northern District of California, a well-known California edibles company lost that argument to a natural-foods company that had registered the same name later but lawfully. The cannabis company had been using KIVA first. The court said it did not matter.
Put those two rules together. If your medical marijuana use only became federally lawful in April 2026, your priority clock may only have started running in April 2026, and only if you have a DEA registration. A decade of brand-building in Kansas City or St. Louis could carry the same priority weight as a startup that filed an intent-to-use application in May. And if that startup, or a multistate operator, or a pharmaceutical company, or a professional trademark speculator, filed for your name before you did, you could find yourself as the defendant in an infringement action over the brand you created.
The registrant gets the tools you do not have. A federal registration brings a presumption of validity, nationwide constructive notice, access to federal court with the illegality defense off the table, customs recordation, and the ability to enroll in platform brand-protection programs. After five years it can become incontestable. A state registration and common-law rights provide none of that outside your state.
A second problem you may have been ignoring
For years, cannabis brands adopted names without clearing them against the federal register, because a federal conflict seemed academic. That is how the industry ended up with product lines named after candy bars, cereals, movie characters, and consumer brands. Those trademark owners now face a cannabis product that is, in the medical channel, federally lawful and federally registrable. Some of them will file oppositions. Some will sue. Filing an application also puts your mark on the public record, where watch services run by large brand owners will find it. Before you file, you need to know what is already out there, and you may need to decide whether the brand you have is a brand you can keep.
What to do now
1. Confirm your federal footing. If you are a state medical licensee, confirm your DEA registration status and keep the documentation. The lawful-use argument at the USPTO starts with it. If you missed the June 22 expedited window, talk to counsel about the standard registration path immediately.
2. Inventory your marks. Business name, product lines, strain brands, logos, taglines, and the marks you use in ancillary channels. Identify which ones you actually care about protecting nationally.
3. Run a real clearance search. Search the federal register, state registers, and common-law use for each mark. Do it before you file, not after you receive an opposition.
4. File, and file carefully. Identifications of goods and services should be drafted to fall squarely within the Schedule III framework, meaning medical marijuana sold under state license and DEA registration. An identification that reads as covering adult-use product will draw a refusal. Missouri operators holding comprehensive licenses that cover both channels need particular care in how goods are described and what specimens are submitted.
5. Consider intent-to-use filings for expansion. If you plan to enter new product categories or new states, an intent-to-use application can lock in a priority date now, subject to actual use later.
6. Keep your state and ancillary registrations current. Missouri registration through the Secretary of State remains inexpensive and useful within the state, and it does not depend on federal scheduling. Federal registrations for lawful ancillary goods continue to provide a foothold. Do not let those lapse while waiting on the USPTO.
7. Set up a watch. Have someone monitor new federal applications for your marks and close variants. An opposition filed during the publication period is far cheaper than a cancellation proceeding or a lawsuit after registration.
8. Adult-use operators should prepare now. Your product is still Schedule I and the USPTO will still refuse you today. But if the pending hearing results in broader rescheduling, the same race starts again for the adult-use market, and the people ready to file on day one will win it. Have your clearance done and your applications drafted.
A note for Kansas and other nonregulated states
Kansas still has no medical marijuana program, so there are no Kansas licensees for this order to reach. But Kansas businesses in the supply chain, and investors in medical market operators, should understand that the brand assets they are financing may be worth considerably more, or considerably less, depending on whether the operator handles the next twelve months correctly.
The bottom line
Federal law has spent a decade telling cannabis businesses they could not protect their names. It has now, for state-licensed medical operators with a DEA registration, started to say the opposite. The catch is that trademark law rewards whoever files first with a lawful use, and it has very little sympathy for whoever used it first without one. If your name matters to you, the time to register it is now, and the time to find out whether someone else already has is yesterday.
Chris McHugh is an attorney with Joseph, Hollander & Craft LLC, practicing in business litigation, business transactions, regulatory compliance, and cannabis industry matters in Kansas and Missouri. This article is for general information only and is not legal advice. The USPTO has not issued examination guidance addressing Schedule III marijuana products, and the analysis above may change as that guidance and the pending rescheduling hearing develop.
