On April 23, 2026, the US Department of Justice (DOJ) announced a potentially significant shift in federal cannabis policy by rescheduling certain marijuana products—specifically products approved by the US Food and Drug Administration (FDA) and products subject to a state medical marijuana licenses—from Schedule I to Schedule III under the Controlled Substances Act (CSA).i This move sparks renewed conversation in the trademark and branding communities since the classification of cannabis impacts the availability of federal trademark rights for cannabis providers. Should the DOJ move inspire growers and dispensaries to immediately rush to the US Patent and Trademark Office (USPTO) to obtain federal trademark products? As usual, it depends.
Background on Trademark Protection for Marijuana-Based Products
For years, manufacturers, distributors, and investors in cannabis products have been frustrated by the inability to federally register marks for use with controlled substances. Although dozens of states permit cannabis sales for medical or recreational use, until this move by the DOJ, marijuana has remained classified as a Schedule I drug at the federal level. The USPTO will refuse applications for marks claiming use directly with cannabis products because federal trademark law requires lawful use in interstate commerce for eligibility to register.ii As a result, even well-established cannabis brands have been unable to secure federal protection for their core goods, leaving them vulnerable to copycats and brand dilution.
The unavailability of blanket federal trademark protection has led to a panoply of alternative strategies, including pursuing state trademark registration, federal registration of marks for use with ancillary goods like apparel or accessories, or both. But these limited measures lack the national reach and legal strength of a federal registration. Until federal reform or rescheduling occurs, cannabis businesses must balance creative branding with a patchwork of legal workarounds to safeguard their identities.
What Did the DOJ Actually Do
The DOJ order, once effectuated, would move marijuana products that are either FDA approved or are subject to a state medical marijuana license to Schedule III. Importantly, the order would not federally legalize marijuana or broadly deschedule it. The change essentially carves out an exception for FDA-approved drug products and medical marijuana subject to a qualifying state-issued license, moving these products from Schedule I to Schedule III. Any other marijuana products that do not fall under this definition, including recreational cannabis products, remain classified in Schedule I. This decision does not alter the current legality of hemp products, which are excluded from the definition of marijuana and therefore are not part of the CSA scheduling.
Furthermore, the order represents an interim regulatory step, with further administrative proceedings expected before a comprehensive federal framework is finalized.
Does Schedule III Change Trademark Eligibility?
Potentially—but only at the margins.
Once the regulatory process is complete, in theory the path to federal registration should be cleared for FDA-approved marijuana products and state-licensed medical marijuana. However, this applies to a very narrow category of products. To date, the FDA has approved only a handful of cannabis-derived or synthetic-cannabis-related drug products. Furthermore, and importantly, despite the rescheduling, non-FDA-approved state-licensed marijuana products are still not lawful under federal law for trademark purposes. It remains to be seen whether the USPTO will require US Drug Enforcement Administration registration for state-licensed marijuana products, medical products for non-medical purposes, or both.
Practical Guidance for Growers and Distributors
Should I submit a federal trademark filing now?
How to proceed depends on a number of factors, including several that are unknowable. First, the USPTO’s examination times are typically months (or more) in length. This will provide some time for the administrative process to (hopefully) clarify matters so that the USPTO can then determine its process for examining what will likely be a spate of new filings in the cannabis space. Second, we don’t know how that administrative process will play out other than that it should clear the way for at least FDA-approved and state-licensed medical marijuana products. That said, as every trademark attorney will tell you, there are distinct advantages to filing early or having “priority.”
Even if the registration process ultimately is unsuccessful, being first in line at the USPTO ensures some degree of priority of claim. Although earlier use of a mark typically dictates priority, filing at the USPTO before the mark is used can reserve an applicant’s place in line, affecting the outcome of ownership disputes, enforcement, and whether a brand can expand without running into a conflict.
Accordingly, cannabis companies should consider filing now if they are:
- A state-licensed medical marijuana company offering manufacturing, distribution, or dispensing services
- Preparing for future federal legalization and want priority positioning
Cannabis companies should continue to be cautious about filing if:
- The application is tied directly to THC-containing marijuana products that are not federally lawful
- They are not prepared for likely USPTO refusals if the process is delayed or bogged down
Strategic Takeaways for Clients
While the DOJ action signals federal momentum, the trademark law still hinges on legality, not scheduling alone. Clients should consider whether the current strategy for protecting their cannabis brand is the right one, and determine whether a federal trademark application makes sense at this time. Barclay Damon’s Trademarks, Copyrights & Licensing Practice Area attorneys are here to help assess which strategy is right for each client.
If you have any questions regarding the content of this alert, please contact Deb Peckham or Mike Oropallo, Trademarks, Copyrights & Licensing Practice Area co-chairs, at dpeckham@barclaydamon.com and moropallo@barclaydamon.com; Sara Dorchak, counsel, at sdorchak@barclaydamon.com; Kat Delos Reyes, associate, at kdelos@barclaydamon.com; Nelly Lozano, law clerk, at jlozano@barclaydamon.com; or another member of the firm’s Trademarks, Copyrights & Licensing Practice Area.
iSee 21 U.S. Code § 801.
iiSee TMEP §907; 15 USC §§1051, 1127.