Cannabis Industry Insight – Trademark is Registered for Cosmetics Containing Hemp-Derived THC Despite a Descriptiveness Refusal
FSST Pharms, LLC, doing business as Native Nations Cannabis and owned by the Flandreau Santee Sioux Tribe in South Dakota, applied to register NATIVE NATIONS CANNABIS (disclaiming the exclusive right to use CANNABIS) for various cosmetic products “containing ingredients solely derived from hemp with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis.”
After the Examining Attorney refused registration on the ground that NATIVE NATIONS CANNABIS is merely descriptive of the goods, the Applicant appealed to the Trademark Trial and Appeal Board (TTAB).
The cosmetic goods identified in this application are lawful, falling within an exemption from the Controlled Substances Act, 21 U.S.C. § 812(c) (CSA). The 2018 Farm Bill, Pub. L. 115-334 (2018), removed THC sourced from hemp from the CSA definition of “marijuana”. However, the Farm Bill preserved the authority of the Food and Drug Administration to approve foods, beverages, dietary supplements, and pet treats containing hemp-derived cannabidiol (CBD). This was not an issue in this case, as the identified cosmetic products complied with the hemp exemption.
However, the Examining Attorney argued that NATIVE NATIONS was merely descriptive of the goods, because it immediately conveyed to consumers that the goods and/or their cannabis ingredient were produced or sold by one of 574 federally recognized Native nations, 9 of which are located in South Dakota. The Examining Attorney presented evidence on use of cannabis historically in indigenous communities, for spiritual rituals, healing practices and cultural ceremonies, as well as press coverage about certain tribal government interest in developing commercial cannabis for dispensaries.
On appeal, the Applicant contended that absent from the record was any evidence of use of “NATIVE NATIONS” by third parties for the identified goods, or any descriptive uses by consumers or appearing in advertising or trade publications. Therefore, the Applicant argued that the refusal was without an evidentiary basis.
The TTAB accepted the Applicant’s argument. The TTAB held that the term NATIVE NATIONS did not describe a specific geographic unit or location, and there was insufficient evidence to show that the public associates NATIVE NATIONS as a location for growing cannabis or hemp. Also, even if those terms described the Applicant as the provider or source of the goods, there is no per se rule making such an identification merely descriptive of the goods.
The TTAB further held that the composite created by combining NATIVE NATIONS with the disclaimed word CANNABIS did not result in a composite mark that identified a quality, feature, or characteristic of the goods.
Accordingly, the TTAB reversed the refusal to register this mark for these goods.
In re FSST Pharms, LLC, Application No. 97419333 (T.T.A.B. July 8, 2025).
Author’s Note:
Although the focus of this case was on the descriptiveness issue, this case also demonstrates one of the ways that trademarks can indeed be registered in the U.S. for some hemp-derived products or related services.
For further information, please contact William M. Borchard or your CLL attorney.
Senior Counsel
Email | 212.790.9290
Bill has handled domestic and international trademark and copyright matters at the highest level for over 60 years. He has counseled and represented clients on domestic and international trademark matters concerning clearance, registration, proper use, licensing, contested administrative proceedings and infringement claims. He became Senior Counsel in January 2024 and is now focusing on providing guidance and advice to other lawyers within our firm and writing informative and engaging articles on intellectual property law developments.