Ask A Cannabis Trademark Lawyer: How Do I Apply For A State Trademark?

Posted by Margolin & Lawrence on January 9, 2018

 As of January 1st, 2018, the long wait is over: cannabis business owners can apply for California state trademarks. The application form can be obtained here: http://bpd.cdn.sos.ca.gov/ts/forms/tm-100.pdf. Because cannabis is still federally illegal and cannabis products themselves cannot be trademarked, this is a viable avenue for many California cannabis brands that will protect your business marks within the state. You can read our prior post about USPTO Trademarks here.

According to the website for the Office of the California Secretary of State:

“Beginning January 1, 2018, customers may register their cannabis-related Trademark or Service Mark with the California Secretary of State's office so long as:

1.The mark is lawfully in use in commerce within California; and 

2.Matches the classification of goods and services adopted by the United States Patent and Trademark Office.  

If the application submitted to register a Trademark or Service Mark is found deficient, the application will be returned to the registrant for correction.

Note: Not all cannabis-related products can be registered under current law due to the inability to meet federal classifications.”

This means that in order to obtain your state marks, you must be lawfully using the marks in commerce at the time of the application. Therefore, you will need to be licensed in compliance with SB 94,  both at the local and state level, before you’re eligible for trademark approval. Otherwise, if you claim an unlicensed use, you may run into issues with the Secretary of State. Further, once your license is obtained, you must also show that you’re making actual, bona fide use of the trademarks on your products in the stream of commerce. That means that customers are identifying you by your brand when they purchase your goods or services in the marketplace.

Ask An LA Cannabis Attorney: Do I need a cannabis water permit?

Posted by Margolin & Lawrence on January 4, 2018

The complex cannabis regulations that have been rolled out by local and state governments across California means that as a cannabis operator you will be working with a number of different regulatory agencies. The rules for many of the cannabis activities are promulgated by different agencies - for example, the Bureau of Cannabis Control regulates retail, distribution and delivery in the state of California, while CalCannabis (a division of the CDFA) regulates cannabis cultivation in the state. One area of great confusion for many cannabis cultivators that our Los Angeles cannabis attorneys have been fielding questions on is the issue of obtaining a state water license. The regulations for water were passed in October, and the application portal is currently open to apply for a water permit. The water policy aims to protect California's natural streams and bodies of water from pollution and prevent diversion of water for cannabis cultivation. 

On October 17, 2017, the State Water Board adopted a state-wide policy establishing strict environmental standards for cannabis cultivation. The state-wide policy is designed to protect water flows and water quality in the state of California. All cannabis cultivators will need to comply with this state-wide policy. In addition to complying with the Water Board’s state-wide policy, cultivators will need to comply with all other state, federal and local laws.

The state-wide policy will be implemented through a water quality permit known as the Cannabis General Order and through conditions for cannabis-related water rights known as Cannabis Small Irrigation Use Registration.

All cultivators will need to register their water right and water discharge using the Water Board’s online portal. The Water Board’s online portal can be found here. Depending on the cultivator’s water source, the state-wide policy may or may not apply to them.

To see the cannabis cultivation policy, click here. If you are a cannabis cultivator and have questions relating to the state-wide policy, Contact us to speak with one of our cannabis attorneys. 

Ask an LA Cannabis Attorney: Can Existing LA Dispensaries Stay Open?

Posted by Margolin & Lawrence on January 2, 2018

2018 is here, and there is a lot of confusion in Los Angeles about the new cannabis laws. The question causing the most confusion is whether existing operators can stay open. Under Measure M, existing dispensaries with BTRCs who comply with Proposition D still have limited immunity until they are licensed. Under state law, a retailer needs a state and local license in order to conduct commercial cannabis activity. The City is currently holding a press conference on the issue and we will update our blog as this issue develops. Our LA cannabis attorneys give their opinion on the matter below. 

Update: At 1pm today, the City confirmed via a press conference that EMMD cannabis retailers in Los Angeles can remain open through the licensing process. 

For years under California state law, commercial marijuana activity has been limited to medical dispensaries and cultivation sites organized as non-profit collectives or cooperatives.  The City of Los Angeles has allowed medical marijuana dispensaries to operate in the City under various sets of rules, most recently under Proposition D, which passed in 2013 and provided immunity from a general ban on commercial cannabis activity to a specific group of medical marijuana dispensaries that have been in operation since 2007 and met various other requirements.

Under California’s Proposition 64, which passed in 2016, starting January 1, 2018, Californians are allowed to commercially grow, distribute, and sell both medical and non-medical marijuana, but only to the extent allowed by local governments (cities, or for those in unincorporated areas, counties).   The City of Los Angeles has a new system for regulating commercial cannabis activity, Measure M and portions of the Los Angeles Municipal Code implementing Measure M, which will allow for both medical and non-medical commercial cannabis.  It is expected that Los Angeles will begin open up its applications on January 3, and begin issuing licenses within a few weeks after that.  Under the terms of Measure M, the provisions of Proposition D were repealed beginning January 1, 2018.

Many have asked whether existing commercial cannabis businesses are allowed to continue operating under the old system of rules, until they are able to secure licenses in the new system.  Existing commercial marijuana dispensaries will retain their legal protection under state and local law, so long as they submit their applications for the new system within the time window provided by the City.  Los Angeles has announced that, for the first 60 days after opening its applications, only existing commercial cannabis businesses will be able to apply for licenses, in a “priority” round, and after this 60-day period, new commercial cannabis businesses will be eligible to apply for licenses.  Measure M makes clear that  existing medical dispensaries can continue operation after January 1, 2018, and need not shut down before applying for licenses, as long as they operate as non-profit collectives, follow all the rules set forth in Proposition D, and submit their applications for licenses within the 60-day priority period.

 Measure M describes this protection as follows: “An existing medical marijuana dispensary (“EMMD”) that is operating in compliance with the limited immunity provisions (Los Angeles Municipal Code Section 45.19.6.3) and tax provisions (Los Angeles Municipal Code Section 21.50) of Proposition D, may continue to operate within the City at the one location identified in its original or amended business tax registration certificate until such time that the EMMD applies for and receives a final response to its application for a City permit or license for commercial cannabis activity being conducted at that location. The City's designated licensing or permitting agency shall give priority in processing applications of EMMDs that can demonstrate to the City’s designated licensing or permitting agency that the EMMD has operated in compliance with the limited immunity and tax provisions of Proposition D. To avail itself of the terms of this Section, including the priority processing, an EMMD must apply for a City permit or license within sixty calendar days of the first date that applications are made available for commercial cannabis activity. If the City issues the EMMD a license or permit for commercial cannabis activity, the EMMD shall continue to operate at its location within the City in accordance with the rules and regulations set forth by the City."

California state law also provides that the provision giving legal protection to medical marijuana patient collectives and cooperatives, Health & Safety Code section 11362.775, will sunset one year after the State begins issuing cannabis licenses.  Until this law goes away, patients will still receive protection under state law for non-profit, collective cannabis activity.

 Accordingly, existing medical marijuana dispensaries in Los Angeles may continue operating  under California’s medical marijuana non-profit collective laws, and Los Angeles’s Proposition D, as long as they submit their applications for licenses during the 60-day priority period.

 For medical marijuana cultivators, manufacturers, and distributors not located at one of the Proposition D dispensaries, there is no explicit protection under Los Angeles law for continued operation pending licensing.  Los Angeles has, however, provided a priority licensing system for these existing  non-retail businesses that have been around since before 2016 and supplying a Proposition D dispensary since before 2017.  This suggests that the City does not intend to prosecute such businesses in current operation, but until these businesses retain licenses from Los Angeles, they face some risk of being prosecuted. 

If you are confused Contact usto speak with one of our cannabis attorneys who can provide clarity on these issues and the cannabis licensing process. 

CA Cannabis Licensing Explained in 2 Minutes - Video

Posted by Margolin & Lawrence on December 31, 2017

As we prepare for January 1 and recreational cannabis in California, many legal questions remain for cannabis businesses. In this video, Los Angeles Cannabis Attorneys Margolin & Lawrence explain the local and state licensing process for cannabis businesses in California. If you are looking for a high level overview of what you will need to do to start a cannabis business, or get your existing cannabis business into compliance, this is the place to start.

Breaking News: LA County Releases Proposed Cannabis Regulations

Posted by Margolin & Lawrence on December 19, 2017

L.A. County released long-awaited draft cannabis regulations yesterday. The Board of Supervisors, which creates laws that govern all of the unincorporated areas of the county (any area that is not part of an incorporated city) has been listening to the findings of the Cannabis Advisory Group over many months and has released the zoning requirements that will apply to commercial cannabis in the county, as well as the activities that will be licensed.The County will be issuing for Adult-Use (recreational) and Medical cannabis uses. Our LA cannabis attorneys have reviewed the proposed cannabis regulations and our findings are below. 

A Macro-Overview of Cannabis Microbusiness Laws In California

Posted by Margolin & Lawrence on December 13, 2017

Our Los Angeles Cannabis Attorneys are constantly fielding questions about a popular license category called microbusiness. The Type 12 license allows you to engage in multiple cannabis activities on the same premises. For example, you could cultivate up to 10,000 sq. ft. of canopy, and distribute, and deliver under one license for microbusiness. The chance to diversify your business and conduct multiple activities under one license is appealing to many existing and prospective cannabis business owners.

The Bureau of Cannabis Control (BCC), released their final regulations for cannabis microbusiness licensees last week, after revising them post SB-94 (you can read more about the process here). Here’s what they have to say about the restrictions on cannabis microbusinesses:

  • Microbusinesses must engage in at least 3 different commercial cannabis activities
  • Microbusiness applicants have to describe operating procedures as required for each activity
  • If a microbusiness license is revoked or suspended, it affects every activity done using that license
  • Microbusiness license fees range from $5,000 to $120,000 depending on size of operation (up to $5 million)
  • Retail operations & Microbusinesses with retail sales can give out free samples to medicinal marijuana customers, as long as it meets the same conditions as normal retail sales
  • Sales at events are allowed
  • Retailers & Microbusinesses with retail will have to employ security guards

If you’re interested in learning more about cannabis microbusiness or retail, Contact us to speak to a Los Angeles Cannabis attorney. 

 

L.A. City Council Voting on Cannabis Ordinances TODAY

Posted by Margolin & Lawrence on December 5, 2017

Cannabis attorney Allison Margolin addressing the LA City Council on the new zoning regulations on Monday:

Today  the LA City Council will vote to determine all of the City's.  the city's new restrictions on where a cannabis business may be located. The current California cannabis law requires that cannabis businesses be located more than 600 feet from all schools.

Los Angeles cannabis attorney

On top of that, LA's most recent draft of its location ordinance required businesses intending to conduct on-site retail sales to be located 750 feet away from sensitive-use areas, including schools, public parks, libraries, and drug treatment facilities, as well as any existing marijuana retail business.

While this is a more lenient approach to sensitive-use areas than LA's previous zoning restrictions, which called for an 800-foot buffer zone, some cannabis businesses and marijuana advocates, including our Los Angeles Cannabis lawyers, argue that introducing two different distancing standards will only complicate the already-opaque standards for marijuana zoning.

The City Council's vote will take place at 10 A.M. tomorrow, December 5th, at 200 N. Spring St.

Update on the L.A. Cannabis Social Equity Program

Posted by Margolin & Lawrence on November 29, 2017

Yesterday, the Los Angeles City Council met to discuss cannabis issues before voting on the final ordinance next month. Our Los Angeles Cannabis attorneys were present and are closely following developments on the path to a final LA Cannabis Ordinance and Social Equity Program. Broadly, the Los Angeles Social Equity Program aims to prioritize applicants who were disproportionately impacted by the war on drugs and criminalization of cannabis, and give them an opportunity to participate in the now legal, newly regulated market. 

The discussion yesterday centered around the social equity program and the tier system, which establishes priority to individuals with a criminal history. The social equity program will benefit disadvantaged communities. As a reminder, Tier 1 applicants are those who have a prior cannabis related conviction, a cumulative household income below the federal poverty line and have at least five years residence in an area impacted by the War on Drugs. So the question becomes, should priority be given to individuals with a criminal history? 

Opinions were heard on both sides of the controversial issue. The purpose of the social equity program is to help remove barriers for persons with a criminal history to equitable ownership and employment opportunities. Concerns were raised the criteria for Tier 1 was limited to cannabis only related crimes. The LA Dept. of Cannabis Regulation reasoned the purpose is to provide legitimate business opportunities in a now legalized industry. Oppositions were raised that the tier system did not distinguish between the level of offense such as, a misdemeanor or felony and excludes low income neighborhoods not impacted by the War on Drugs. This suggests person(s) convicted of a minor cannabis crime will have priority over person(s) who have been established in a disproportionately impacted community for many years. Recommendations were made to the Dept. of Cannabis Regulation to define distinct requirements to qualify as a Tier 1 applicant. For more information on the social equity program click here.

In addition to the Social Equity Program, the Council is also considering the revised Location Ordinance which introduces new distancing requirements. An important change to the proposed zoning ordinance is the addition of a 600 foot buffer to sensitive use areas for all activities including cultivation and manufacturing. Make sure you check the location

of your business is compliant with the land use ordinance. The vote is next week so make your voice heard and submit your comments to the City Council by December 4th

If you have questions about the Social Equity Program or the new zoning changes,Contact us to speak with one of our Los Angeles Cannabis Attorneys.

Ask an LA Cannabis Attorney: So What's Happening in WeHo?

Posted by Margolin & Lawrence on November 9, 2017

On November 5th, the City Council of West Hollywood put an end to a long period of speculation about the future legal status of cannabis in their jurisdiction, moving to allow recreational and medical marijuana dispensaries, delivery services. In particular, the WeHo City Council approved of allocating 8 licenses per type of cannabis activity (Adult-Use retail, Consumption Areas with On-Site Adult-Use retail, Delivery Services, and Medical-Use dispensary,) and confirmed this decision on the morning of November 8th. These activity types are of interest in themselves: Allowing retail spaces to provide an area for on-site consumption means WeHo might soon be the home of hip, Amsterdam-style marijuana cafés.

While this explains quite a bit about West Hollywood's approach, some aspects of the city's regulations remain unclear. For instance, the exact selection process for the 8 licenses per activity has not been decided by the City Council. Moreover, the zoning regulations for marijuana businesses have also not been finalized by the city. To address these questions, the City Council of West Hollywood will meet again on November 20th to discuss zones and grading criteria for licenses. The City Council has given itself a deadline of December 6th to resolve these issues, which it hopes to meet before the new laws come into effect on January 1st.

As it stands, what our cannabis lawyers know about the future process for license application selection is as follows: The top eight applications will be issued licenses based on merit. Some of the criteria in consideration for "merit" will include compliance with the city's social equity program, operating a pre-existing cannabis business that's in good standing in WeHo, or previous experience with a cannabis business elsewhere in the state. Again, these criteria have been merely discussed and not approved. Once the criteria are fixed, the city will essentially grade each application based on the standards they establish.

Since relatively few licenses will be granted, it is imperative for any marijuana business applicant in West Hollywood to not only meet the criteria set out by City Council, but also to provide adequate reasoning for why its merits qualify it to be chosen over the other applicants. The application period will be open in January 2018 for a period of 30 days; since the timeframe is so short, if you're interested in starting a cannabis business in WeHo, it's important to get started on the application process now.

For more information or to set up a consultation with our Los Angeles cannabis lawyers, take a look at our guide to California's new marijuana laws or email us at info@margolinlawrence.com

How Many Los Angeles Cannabis Licenses Will Be Issued?

Posted by Margolin & Lawrence on November 7, 2017

Last week, our Los Angeles cannabis attorneys were at the City Council meeting where the Council moved to amend the Draft Regulations that were previously released on September 22, 2017. The Los Angeles City Council moved to amend the Draft Regulations released on 9-22-2017 to include a motion that will allow cannabis operators who meet certain requirements to remain open if they file for limited immunity within 15 days of applications opening. You can read more about the Draft Regulations from September in our previous posts here and here.

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This blog is not intended as legal advice and should not be taken as such. The possession, use, and/or sale of marijuana is illegal under federal law.