For me the biggest challenge is the fluidity of this. It’s changing on a regular basis. You don’t know where things are going to necessarily be a year from now or even six months from now. And so advising clients is hard because they’re basing their decisions on some of what you say and they may be making investments in manufacturing or in advertising, etc., and things may change. Caution is an important aspect of what you do.
But at the same time, they’re coming to you for assistance in protecting their product or idea and being able to stop others at some point in the future from trying to capitalise on whatever market share they may have garnered through their efforts or whatever investment they may have made. As noted earlier, in the US an important challenge is that even though marijuana may be legal in one state, it may not be legal in the next state over. You may have a manufacturing facility in your particular state where it’s legal, but it may be the next state over where
you want to sell it.
If you start shipping it across state lines, then you’re violating federal laws. So, there are a lot of challenges. One thing I
wanted to add is that to the extent possible, you want to try to protect your logo by way of copyright. Copyright registrations here in the US are much easier to get than trademark registrations. The copyright office in the US doesn’t look at the application and say, ‘oh, it’s cannabis or it’s marijuana or it says weed. Therefore, it is not registrable.’ It does have to have a certain level of creativity associated with it, but assuming it does, it should be protectable from a copyright perspective and that will provide a certain level of protection (and rights for enforcement purposes).