Much has changed in the cannabis market and legal landscape since California first “legalized” marijuana in 1996 in defiance of the plant’s Schedule I status under the Controlled Substances Act. Almost three decades later, the U.S. cannabis industry is estimated to reach a market size of over $45.35 billion in 2025. Although the federal government has backed away from enforcing its drug laws against those following state marijuana laws in recent years, the U.S. Patent and Trademark Office (“USPTO”) continues to refuse applications to register federal trademarks with many cannabis goods and services on the basis of “unlawful use in commerce.” This Article seeks to understand how legal and policy changes at the state and federal level have affected the cannabis industry’s trademark filing activities at the USPTO. My conclusions are based on an empirical analysis of over 23,000 applications to register trademarks with cannabis goods and services filed from 1996 through today.
This study finds that filing numbers, though largely unaffected by state regime growth alone, increase at any sign of federal recognition. These results paint a portrait of a relentlessly hopeful industry, craving both legitimacy and the ability to protect their companies and consumers with the benefits of federal trademarks.
The gender gap in intellectual property regimes has been extensively explored in recent years. While patents, copyrights and trademarks have been explored empirically, trade secrecy has not yet been studied. This Article discusses for the first time the tension between trade secrecy and gender, empirically exploring initial findings pertaining to women participation in trade secret litigation, both as plaintiffs and defendants, showing that women are significantly underrepresented. The Article offers possible explanations for these findings as well as possible ways to address them.
The International Trade Commission (“ITC”) was originally designed to protect American industries from foreign companies and governments engaged in unfair trade practices. But when Congress amended the trade statutes in 1988 to close a small loophole regarding copyright infringement, it inadvertently turned the ITC inside out, transforming it into a haven for so-called “patent trolls,” entities who produce and sell nothing themselves, but instead buy patents of questionable validity for the sole purpose of exploiting dysfunctions in the patent dispute system to coerce money settlements from productive American companies. Despite producing and selling nothing, patent trolls have been deemed “domestic industries” under the ITC’s precedents. The ITC’s rules and procedures include many of the dysfunctions of the civil justice system, but those dysfunctions are compounded by the ITC’s in rem jurisdiction that diminishes protections for persons, and by the ITC’s expedited administrative procedures that allow for only one blunderbuss remedy that grossly mismeasures any real injury. The ITC’s rules disallow the full airing of arguments, and bypass the federal rules of evidence and procedure, constitutional standing rules, certain patent infringement defenses, and even the Patent Trial and Appeal Board (“PTAB”), the ultimate executive branch authority on patent validity. The ITC, by failing to defer to the PTAB, perpetuates and rewards unjust monopolies in the form of invalid patents, in direct violation of the fair-trade principles it was originally created to uphold.