Legalisation of cannabis and industrial property rights / marketing

In its Coalition Agreement (page 87), the traffic light coalition (a coalition of Social Democrats, Liberals and the Greens) explicitly holds out the prospect of stricter regulations for the marketing of alcohol, nicotine and cannabis and related sponsorship activities. The bill of a Cannabis Control Act (Cannabiskontrollgesetz, CannKG-E), which was rejected by the Bundestag in 2018, provided for a complete ban on advertising under Article 1 Section 16 CannKG-E. The market players involved may only advertise medical cannabis within expert circles of trade and among pharmacies and physicians (Section 14 (5) of the German Narcotic Drugs Act (Betäubungsmittelgesetz, BtMG)).

Future regulations could be based on the more differentiated requirements of tobacco advertising law; however, restrictions on the advertising of products that contain tobacco have been steadily increased in recent years - the Coalition Agreement suggests that this trend is far from over.

Market players should closely monitor whether and what room for manoeuvre the legislator will provide beyond the required product and company information.

Closely related to the anticipated advertising restrictions is the question of what obstacles will be encountered in obtaining trademark protection for cannabis products. Current EU case law assumes that EU trade marks containing the word “weed” cannot be registered on the basis that they are contrary to public order (CJEU, judgment of 12 May 2021 - T-178/20). Since the term 'weed' evokes the recreational use of marijuana, the relevant public would perceive it as promoting and advertising, or at least trivialising, the use of cannabis as a prohibited and illegal substance - irrespective of whether the brand is used for the partially permitted therapeutic use of cannabis. Until cannabis is legalised throughout the EU, the registration of EU trade marks containing comparable colloquial terms for cannabis (e.g., "pot", "grass", "boom", "ganja" or "dope") seems therefore unlikely. It remains to be seen how the German Patent and Trademark Office (DPMA) will deal with corresponding German applications after the legalisation of recreational use and to what extent any advertising restrictions will have to be complied with.

The cultivation of cannabis varieties to meet any regulatory requirements and to differentiate themselves from competing products in terms of quality may involve significant investment. Under the Council Regulation (EC) 2100/94 on Community plant variety rights, plant varieties are protectable that are (a) distinct, (b) uniform, (c) stable, and (d) new. In addition, or to the extent that the requirements for protection under variety law cannot be met, specific cultivation methods and other scientific procedures on which cultivation is based may be protected as know-how. This requires the implementation of appropriate protection concepts, which would need to be assessed in light of the 2019 Trade Secrets Act (Gesetz zum Schutz von Geschäftsgeheimnissen, GeschGehG). However, this still raises a large number of unresolved legal issues.