Choosing branding that will not infringe the trademark and/or copyright rights of a third party is a critical step in developing a sound and fiscally responsible marketing strategy. Infringing will not only result in paying substantial damages to the pre-existing brand owner, it will also lead to massive rebranding costs. Count the dollars wasted for all of those printed labels a manufacturer would need to throw away, not to mention the products they will need to recall and pull off the shelves. Think about new websites, social media accounts and the loss of the internet search history and ranking. What is you could avoid all that risk for less than $1,500? Sound like a worthwhile investment?

Trademarks (and service marks) are commonly (but not limited to) words, phrases (slogans and taglines), symbols, colors or designs (logos and other stylized marks) that identify the source of a product and help distinguish that product or service from that of competitors. The best way to protect a trademark is to register it at the state or federal level. Logos that are adequately original and ornate may additionally be protected under copyright law as visual works.

Therefore, before launching a new brand of CBD products (building a website, printing labels other marketing activities), CBD manufacturers should do their due diligence and conduct comprehensive searches with the U.S. Patent and Trademark Office and the U.S. Copyright Office to clear the proposed names, logos and label designs.

Ownership of The “Creatives” for Your Brand

Many CBD manufacturers don’t have in-house marketing staff and engage outside graphic designers to develop their logo, photography, “copy” (written) content, videography, website and product packaging. However, many have not secured ownership over the “creatives” through a written agreement such as a written independent contractor agreement, copyright assignment or work for hire agreement (“Agreement”).

The written agreement must state that the designer (photographer, copy writer, videographer, etc.)  assigns his or her rights in the work product to the CBD manufacturer hiring and paying for the creative content. This is critical because under copyright law, the “author” of a creative work is automatically the owner of the work, absent any written agreement to the contrary.

This transfer of copyright will ensure that the CBD manufacturer has the right to freely use and reproduce the creative content, including registering trademarks including the creative content, registering copyrights including the creative content, entering into licensing agreements and the ability to enforce all of these rights against would-be infringers.

With the growing popularity of CBD-infused products, CBD manufacturers are eager to enter the market and tend to rush through the marketing process, running the risk of incurring significant recall and rebranding costs. To avoid such financial burden, CBD manufacturers should consult with experienced CBD brand and business attorneys who can review their product labels and ensured that their branding is indeed theirs to use.