Seattle Trademark Lawyer

During Washington’s last legislative session, Olympia considered taxing marijuana trademarks.

It’s a bad idea.

But first, a little background on the bill.

If passed, House Bill 1976, would have levied a “tax of three dollars and sixty cents per thousand dollars of assessed value upon the assessed valuation of all trademarks, trade names, brand names, patents, and copyrights that are related to marijuana.” Revenue collected from the tax would go into the state’s Life Sciences Discovery Fund and be earmarked for marijuana farming research.

Rep. Jeff Morris (D - Mt. Vernon) introduced the bill, which was referred to the House finance committee. No further action was taken on the bill before the legislative session ended.

The bill states it was intended “to enable Washington to capitalize on its unique position” of being the only other state besides Colorado to legalize recreational marijuana. Presumably, the idea is for the state to skim a little off the top from those competing in our legal marijuana industry.

Like I said, it’s a bad idea. Here’s four reasons why. (Believe me, there are more, but I’m trying to be brief.)

First, Washington already has a tax on trademarks. It’s called a filing fee. Every trademark owner wishing to register its mark with the state must pay the state $55 per mark — plus another $50 if the owner wants the state to expedite the processing of its application. The proposed new tax on trademarks would add to this existing fee structure, which is nothing more than a tax.

Second, doesn’t the state want to encourage businesses to protect their intellectual property, as well as to compete in our legal marijuana industry? Voters have already made the policy judgment of wanting to create that industry. One would think the state would seek to benefit from the economic boost the new industry should create, along with the attendant sales and other taxes the state should expect to collect as a result. Singling out for an additional tax those who seek to maximize the value of their intellectual property in a particular industry seems counterproductive and strange.

Third, the bill says nothing about how the tax would be calculated. Exactly who is supposed to assess the value of the trademarks, trade names, and other intellectual property that’s to be taxed? The bill doesn’t say. That’s a critical omission.

Finally — and for this blog, most importantly — the bill seems to misunderstand the purpose and value of trademarks. Trademarks indicate who makes the good or service sold with the brand. A trademark that’s never been used in an industry that does not yet exist has no value at all. A trademark becomes valuable only when a seller earns a good reputation. Therefore, the tax would target the companies with the best reputation — the responsible ones that have provided good, consistent quality, and who treat their customers right. Burdening the best corporate citizens with a tax aimed specifically at them would not seem to encourage the type of behavior this state should want.

Let’s hope the bill stays where it is — just one legislator’s bad idea — and never becomes law.

I’ve got some clients who are interested in protecting their (legal) marijuana trademarks: both medical and recreational. 

Since they’re interested, I’m interested.

And, besides, I think it’s just plain interesting. Illegal on the federal level. Legal in some states for medical uses. Legal in Washington and Colorado for recreational uses. Illegal at airports. Illegal across state lines. It’s a legal mess, all right. But we’ll help sort it out this week at the King County Bar Association Intellectual Property Law Section’s monthly brown bag lunch. March 6, noon to 1. Members can attend live or stream on their computer. Information on the IP Law Section here.

The nickel version of my thoughts: marijuana trademarks are like all other trademarks, except for the “lawful use” requirement at the federal level. In short, you can’t register marks for marijuana-oriented goods or services with the U.S. Patent and Trademark Office, because those uses aren’t legal. So you should register “clean” versions of your client’s goods and services at the federal level, and the marijuana uses where legal at the state level. Just don’t get too cute with the PTO (like “MARYJANE HEMP FOODS” for food supplements) or the PTO will require you to answer some pretty direct questions about whether your client’s goods contain marijuana.

My slides are viewable here.

Bring your questions, best practices, and best guess at what the law will look like in five years.