July 22, 2016
By: Tiffany Scott Connors and David Spellman
“The recent Trademark Trial and Appeal Board (TTAB) decision, In re Morgan Brown, (Herbal
denied registration for the Herbal Access mark for a retail store legally selling
marijuana products in Washington state. The decision reveals the widespread need for the
marijuana industry to transition from the bootleg mindset to a mainstream mindset.
Operating under a bootleg mindset, the applicant tried to conceal a licensed marijuana
store/dispensary as an herb store. The TTAB emphatically rejected this polyjuice potion
approach. To make matters worse, the business threw away good money, first by pursuing the
application and later by appealing the adverse decision, when it should have pursued other
strategies to protect and grow the business instead (i.e., the whole package of intellectual
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