Trademarking Psychedelics

14 Nov Trademarking Psychedelics

Can companies in the psychedelic space register their trademarks, for psychedelics themselves? This is a question that often comes up, given U.S. trademark law’s requirement that marks be lawfully used in commerce as a precondition to registration. In recent times, many trademark applications filed by cannabis businesses have been refused on lawful-use grounds, though this legal prohibition can manifest itself in more mundane ways. For instance, USPTO denied a vineyard’s application to register their trademark on account of its failure to obtain approval for its bottle labeling.

To address the issue as it impacts psychedelics, let’s look at some real-world examples, specifically the companies behind U.S. News & World Report’s 5 Psychedelic Stocks to Watch.

Mind Medicine (MNMD)

Mind Medicine, also known as MindMed, filed an application to register the MINDMED mark in 2019. The application originally included goods in Class 5, namely, “Medical preparations for the treatment of PTSD, addiction, depression and mental disorders; Pharmaceutical preparations for the treatment of PTSD, addiction, depression and mental disorders.”

USPTO refused to register the trademark in Class 5, but not because of the nature of the goods. Instead, USPTO was of the opinion that the mark was likely to be confused with another trademark, MEDICINE MIND. No lawful-use objections were raised.

The application ultimately proceeded for goods in other classes, presumably to be used as promotional gifts, such as pens, backpacks, coffee mugs, beach towels, and t-shirts.

Compass Pathways (CMPS)

Compass applied to register the mark COMPASS PATHWAYS in 2020, on the basis of an earlier UK registration. The application includes goods in Class 5, specifically, “Pharmaceuticals for the treatment of mental health conditions; pharmaceuticals for the treatment of depression; psychoactive medicines; psychedelic medicines.” USPTO asked Compass to change the description of the Class 5 goods, as it considered the description to be indefinite.

USPTO accepted a new description that provided additional details:

“Pharmaceuticals for the treatment of mental health conditions, namely, pharmaceuticals for the treatment of depression, anxiety, bipolar disorder, post-traumatic stress disorder, and eating disorders; Psychoactive and psychedelic medicinal preparations for the treatment of depression, anxiety, bipolar disorder, post-traumatic stress disorder, and eating disorders.”

The mark is now set to be published for opposition, and covers a wide range of other goods and services, including software, wearable medical monitors, advertising and publicity services to promote awareness of mental health conditions, training services, and therapy.

Field Trip Health (FTRPF)

In July 2021, Field Trip applied to register its logo. The application includes the following Class 5 goods: “Botanical supplements for general health and well-being; Dietary supplements for general health and well-being.” However, USPTO has not yet assigned the application to an examiner.

Cybin (CLXPF)

Cybin applied to register the mark CYBIN in 2020. In its original form, the application included “Biochemical preparations, namely psilocybin mushroom extract” (Class 5), “Dried edible fungi; edible fungi oils” (Class 29), and “fresh edible fungi” (Class 31).

USPTO objected to these descriptions on lawful use grounds. It required that the Class 5 goods be deleted. In addition, it required that the description for Classes 29 and 31 clarify that the fungi products in question do not contain psilocybin or psilocyn.

The application remains suspended on unrelated procedural grounds.

Numinus Wellness (LKYSF)

In April 2021, Numinus filed an application for the NUMINUS mark, based on an earlier Canadian application. This application does not cover any goods, only services.

Analysis

Based on this sample, it appears USPTO is mindful of the fact that there is some space for the psychedelics industry to operate legally. This would be consistent with its registration of marks that describe psychedelics in general terms. It is where specific goods are described – as in Cybin’s application – that issues arise (again, based on the sample reviewed).

Still, it is striking that USPTO found fungi products to be problematic; this are after all descriptions that encompass many food products common in our kitchens. It is possible, however, that the mention of psilocybin elsewhere in the application put USPTO on alert (although we already saw one “psilocybin” mark make its way to the supplemental register, as we covered here).

Even if that is the case, inconsistencies remain. While one applicant is required to specify that their fungi products do not contain psilocybin or psilocyn, others are able to get through with descriptions within which controlled substances are included.

Not surprisingly, the trademark landscape for psychedelics remains fluid. That even within a small sample of applications we see inconsistencies suggests examiners are approaching the issues differently.  It is probably just a matter of time before USPTO issues guidance, as they did for cannabis products. When that happens, the additional clarity will be welcomed, yet with it might come unwelcome strictures and bars to registrability.

For now, we will keep an eye on any developments, so stay tuned.