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Here’s a conundrum for you: how do you go about cannabis branding if you cannot trademark your business? How can you trademark something that’s not legal — everywhere? In “Protecting Cannabis Brand Names,” Oliver Herzfeld writes for Forbes about the trials and tribulations cannabis brands are facing from a legal perspective.

It’s a great review of the problem that these businesses face as more and more U.S. states legalize the substance in some form or another while the federal government has not. As a matter of fact, most of his suggestions apply to anyone trying to create a brand, not just those in this predicament. For example:

  • Avoid infringement from the beginning
  • Use in commerce
  • Register at the state level
  • Trademark ancillary products
  • License a mark elsewhere

All great advice which I will not go into here because this article spells it all out brilliantly. I am, however, going to add some thoughts on how to prepare your brand from a more foundational, not legal perspective.

If you want to trademark your company, start with brand. When your brand is well established and thriving, you can meet the “Use in commerce” requirement of the trademarking process with much greater ease. More importantly, it will help you create a business in which your customers genuinely care that what you offer comes from you, and not from someone else.


It all starts with understanding why you’re in the business to begin with.

It’s probably more than you like getting stoned and this is a way to make some cash. It has to or, I hate to tell you, the business is not sustainable.

Next, you have to create a brand that offers something different from everyone else–not just in terms of product or packaging, but in terms of the whole experience. Getting there requires answers to questions like:

What is the journey my customers are on every time they want to do business with someone like me? What’s their motivation? What are their frustrations and anxieties? How does the process fit into their day to day routines? What about their experience will make them the happiest?

[I know what you’re thinking: “Dude, the weed’s gonna make them the happiest.” Settle down. I’m being serious here.]

Then, the big one: How can I address the answers to those questions differently and better than everyone else?

Maybe it’s creating a process that is swift and hassle-free for experienced customers. Maybe it’s extra care and attention to ease the anxieties of newbies. Or, perhaps you address head-on concerns parents may have with edibles and their kids. (These are just illustrations and not actual suggestions. Taking advice from me on how to sell pot is like taking advice from Donald Trump on how to get absolutely everyone to love you.)

That’s the key. That’s how you can recreate a brand that is relevant and competitively differentiated from all the other choices customers have.

Simple, right? Maybe. Easy? Not so much. Remember, start with brand.

— Douglas Spencer

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