On January 4, 2018, U.S. Attorney General Jeff Sessions officially rescinded the so-called Cole Memo limiting federal prosecution of marijuana offenses. The Cole Memo was enacted in 2013 under former President Barack Obama’s administration, and was guidance to U.S. Attorneys on Justice Department enforcement of federal marijuana laws. It specifically outlines those activities which should be prosecuted, more serious criminal acts, like gang-related trafficking or selling to minors, and limited federal marijuana prosecution of individual, recreational use. It had been official Justice Department policy for the last four years, until its rescission by current Attorney General Sessions.
Downstream implications for intellectual property procurement appear mixed. Patents were being prosecuted and issued as early as 2003, long before the Cole Memo was drafted, and it appears the Cole Memo’s rescission should not a major effect on patent issuance by the USPTO. Federal trademarks were routinely refused registration as late as 2017, so, likewise, the Cole Memo rescission should have little impact on federal trademark registration by the USPTO (i.e., the USPTO will continue to refuse marijuana-related marks). State trademark registrations, however, appear to be more likely affected by the Cole Memo rescission, since most states require actual use in commerce which will be made more difficult if federal prosecutions increase or licensing of new cannabis companies is stifled.
We will continue to monitor these developments and update the blog accordingly.