The days of smoking cannabis out of apples is over. Smoking devices are readily accessible in tobacco shops and cannabis retailers, and their production and sale are big business. Creative shapes and sizes impress and create unique smoking experiences. However, as states across the U.S. continue to legalize cannabis for medical and recreational use, the legal status of cannabis paraphernalia—such as bongs, pipes, and rolling papers—remains a gray area due to ongoing federal prohibition of these devices. However, that does not mean that companies producing these products cannot seek protection of their intellectual property on the state and federal levels. And with a little creative tact, companies can find ways to federally protect their brands.
What are drug paraphernalia?
The term “drug paraphernalia” refers to any equipment used to produce, conceal, or consume illicit drugs. Under federal law, this encompasses:
“any equipment, product or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.”
Examples of paraphernalia include:
- Pipes: Made from various materials such as metal, glass, wood, or ceramic.
- Water pipes and bongs: Often used for smoking cannabis or other substances.
- Roach clips: Small tools designed to hold the end of a marijuana joint.
- Chillums: Cone-shaped pipes often used for cannabis or hash.
- Cannabis rolling papers: Sometimes marketed for tobacco use but often employed for rolling cannabis joints.
The Federal stance on drug paraphernalia
Despite the widespread state-level legalization of cannabis, federal law continues to prohibit the sale, transport, and use of drug paraphernalia under the Controlled Substances Act. Specifically, U.S. Code Title 21 Section 863 makes it “unlawful for any person to sell or offer for sale drug paraphernalia; to use the mails or any other facility of interstate commerce to transport drug paraphernalia; or to import or export drug paraphernalia.”
Yet, cannabis smoking implements are readily available in stores and online, and there is little indication that the federal government intends to crack down anytime soon. Producers have skirted the prohibitions by labeling their products with disclaimers indicating that they are intended and designed for use with tobacco products. However, a quick review of the design and shape of these items reveals that they are not well suited for tobacco at all.
Retailers such as tobacco shops, gas stations, and novelty stores often display these items prominently. Additionally, online marketplaces and mail-order services facilitate access to paraphernalia, making enforcement of federal restrictions even more unlikely.
Drug paraphernalia in Washington State and beyond
Many states permit the sale and use of cannabis paraphernalia, recognizing their utility in consuming legal cannabis products. This includes Washington State, which has provided an exception to the prohibition of drug paraphernalia if it is intended for cannabis consumption.
Washington law only permits cannabis retailers to sell cannabis paraphernalia to persons over the age of 21. Likewise a new federal law prohibits selling tobacco products to anyone under the age of 21. That being said, exotic shapes and sizes, with creative designs, such as dragons, skulls, or mushrooms, appeal to younger cannabis users. And they range in price from mere dollars to the tune of hundreds or more.
Trademark protection for smoking devices
Since cannabis paraphernalia is big business, it raises the question of whether a manufacturer can trademark the name of their products and stop confusingly similar names from entering the marketplace. The short answer is yes, they can. Potentially, both on the state and federal level. And despite the conflict between state and federal law, some trademark classifications are available to protect a cannabis company’s intellectual property. A little creativity in the federal trademark application process can go a long way in securing some form of trademark protection for a brand name, logo, and trade dress for a wide variety of smoking devices.
Each trademark registration must be associated with one or more classes of goods or services. Since manufacturers disclaim that these implements are for tobacco, on the federal level Class 34 encompasses most products related to tobacco, including lighters and pipes. So federal trademark protection is available if in fact these products are advertised as intended for use with tobacco. Likewise, many states now offer trademark protection themselves even for cannabis products and in Washington State, “smokers articles” are a class available for trademark registration.
However, on the federal level, trademark examiners common use extrinsic evidence to deduce the actual purpose of the products seeking trademark registration. If it appears that the product is unlawful drug paraphernalia, they will refuse registration. Advertisements and articles featuring the products and highlighting their cannabis implications have been reviewed by trademark examiners—and as you might expect there are instances where the USPTO has deduced their true intent. So, it is not a sure thing to merely label your products as intended for use with tobacco. Particularly when they are more elaborate contraptions, for example vaporizers and dab smoking equipment.
Conclusion
Even though there is a federal prohibition on drug paraphernalia, this does not mean that producers need to wait in order to obtain protection of their intellectual property. However, it could mean that your application on the federal level is rejected if you have too much notoriety as a cannabis product.
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