icon on On December 18, 2025, the White House issued an Executive Order directing the Attorney General and the Drug Enforcement Administration (DEA) to initiate the process of reclassifying marijuana from Schedule I to Schedule III under the Controlled Substances Act (CSA) and to expand research into medical marijuana and cannabidiol (CBD) products. While this Executive Order represents a significant policy development, it does not itself effectuate rescheduling of marijuana. Rather, it initiates and accelerates administrative procedures that must culminate in a final DEA rule to have legal force. Until such a rule is finalized, marijuana remains a Schedule I substance under federal law, and the United States Patent and Trademark Office (USPTO) will continue to refuse trademark applications for cannabis-related goods and services that are federally unlawful. However, trademark attorneys and practitioners can help cannabis businesses prepare their brand management strategies and trademark portfolios as the U.S. federal government expedites the rescheduling process.
CURRENT USPTO POSTURE
Federal trademark protection requires that the trademark be used in lawful interstate commerce. For decades, the USPTO has refused applications covering marijuana products, dispensary services, and related activities when the underlying goods or services are unlawful under federal law. However, the USPTO has allowed registrations for ancillary cannabis-related goods and services, such as apparel, smoking accessories, and educational or informational services, as well as for hemp-derived goods compliant with the 2018 Farm Bill (for example, CBD derived from hemp containing no more than 0.3% delta‑9 THC by dry weight), provided that applications are carefully drafted to reflect lawful use. Nevertheless, federal trademark protection for “true” cannabis (that is, marijuana) remains unavailable until rescheduling is completed and lawful commerce parameters are established.
WHAT RESCHEDULING MARIJUANA TO SCHEDULE III WOULD (AND WOULD NOT) CHANGE
If the DEA issues a final rule reclassifying marijuana to Schedule III, the substance will be recognized as having accepted medical uses and a lower abuse potential than those in Schedules I and II. Schedule III substances remain controlled and generally require prescriptions, registration, and compliance with DEA and FDA regulations. Once marijuana is lawfully distributed under these federal frameworks, trademarks for such goods and their legal channels of trade may become eligible for federal registration, as they would be used in lawful interstate commerce. However, rescheduling alone does not legalize recreational cannabis at the federal level, and trademarks for adult-use marijuana may still be refused unless Congress or subsequent rulemaking alters federal policy.
ESTIMATED TIMELINE FOR RECLASSIFICATION
The Executive Order directs an expedited rescheduling process but does not impose binding deadlines. DEA rescheduling proceeds through the notice-and-comment rulemaking process, which includes publication of a proposed rule, a public comment period, and issuance of a final rule. The Department of Justice proposed rescheduling in 2024, and the 2025 Order instructs that this process be completed. Based on standard federal rulemaking timelines and the complexity of the issue, a final DEA rule could be expected within six to twelve months of the Executive Order, provided the process is prioritized and the administrative record is well developed. However, stakeholders should anticipate potential delays due to further analysis, interagency review, and potential litigation.
INTERACTION WITH USPTO EXAMINATION TIMELINES
The USPTO generally issues its first substantive action on a new trademark application approximately five to six months after filing, although the overall registration process varies depending on the mark, the quality of the application, the goods and services, the nature of the office action refusal, and the prosecution status. If a final DEA rule is issued before or during this initial examination period, applications for lawful medical cannabis products and services may be reviewed under the new legal framework. On the other hand, if DEA rulemaking is delayed, applications for marijuana products filed at present will likely be refused under current law, necessitating suspension, amendment to exclude unlawful goods, or abandonment and refiling after rescheduling is finalized.
FILING STRATEGY: SHOULD CANNABIS COMPANIES FILE NOW?
In light of the evolving rescheduling process, cannabis companies should align trademark filing strategies with their portfolio priorities and risk tolerance.
First, companies intending to participate in a federally compliant medical cannabis regime may prepare applications now for related lawful goods and services, including clinical research, educational services, compliant devices, packaging, and ancillary goods. For marijuana-based goods that may become lawful after rescheduling, applicants may consider filing intent-to trademark applications, recognizing that refusal under current law is probable. Applicants can subsequently request suspension (if available) or amend the recitation of goods and services in the application once the DEA finalizes rescheduling. This aggressive strategy secures a position in the USPTO examination queue and establishes priority over subsequently filed applications. However, this strategy risks refusal under current federal law and may incur additional costs to address those USPTO refusals, including responding to office actions and appeals to the Trademark Trial and Appeal Board (TTAB) or the Court of Appeals for the Federal Circuit.
Second, applicants should broaden their U.S. trademark registrations to include ancillary goods and services, such as apparel, lighters, rolling papers, retail services, and information services for lawful products, as well as hemp-derived goods that comply with Farm Bill and FDA requirements. The applications should include precise identifications of goods and services to avoid USCPTO scrutiny.
Third, for marks primarily associated with marijuana products that will only be distributed following rescheduling, a conservative strategy is to wait for final DEA action before filing. At that time, submit specimens and declarations demonstrating lawful medical distribution. This approach reduces immediate prosecution challenges but may delay potential timing advantages afforded by filing a trademark application earlier.
Fourth, because federal registration remains contingent on "lawful use" in interstate commerce, cannabis companies consider should immediately securing state trademark registrations in every jurisdiction where they operate and has legalized marijuana/cannabis use (medically and/or recreationally). While federal rescheduling to Schedule III may eventually open the door to USPTO protection for medical and recreational marijuana, state registrations provide a critical, existing layer of defense that is not subject to federal “lawful use” delays. Unlike common law rights, which are often limited to a specific city or region where the mark has been used, a state registration typically grants the owner statutory rights across the entire state. This "boots on the ground" strategy is essential for several reasons: it provides public notice to competitors, offers a more efficient path for enforcement in state courts, and creates a documented record of "first use" that may prove invaluable in future priority disputes once federal applications are eventually examined. By securing a patchwork of state registrations now, brands can "shore up" their portfolio against local infringers and establish a defensive perimeter while the federal landscape continues to shift.
INTERNATIONAL TRADEMARK IMPLICATIONS
Although the Executive Order has minimal direct impact on international trademark practice overall, it is likely to shape brand protection strategies in key jurisdictions. In the European Union, the European Union Intellectual Property Office (EUIPO) applies absolute grounds of refusal under Article 7(1)(f) EUTMR for marks deemed contrary to public policy or morality. EUIPO and the General Court have consistently refused marks perceived as promoting recreational cannabis, particularly those featuring cannabis leaves or slang such as “weed,” as these are viewed as encouraging illegal behavior in many Member States. Recent commentary indicates that references to medical cannabis may be treated more favorably if the sign does not trivialize illegal use. Because an EU trade mark grants unitary protection, an absolute-grounds issue in any part of the Union can bar protection across the EU. Therefore, even if the United States reschedules marijuana to Schedule III, applicants seeking EU protection should avoid recreational-use messaging and stylization that could be interpreted as endorsing illegal consumption, and should emphasize compliant medical channels where permitted.
In the United Kingdom, the UKIPO’s Manual of Trade Marks Practice and the Trade Marks Act 1994 govern registrability, and the same core principles apply: marks must distinguish goods and services and must not be contrary to public policy. Practice notices stress the need for clear specifications, and applicants should restrict goods and services to lawful categories, such as hemp-derived products that meet UK thresholds, to avoid refusal. The UK’s approach to unacceptable marks and lawful-use requirements also supports conservative specifications that do not suggest illegal recreational use.
For multinational filings under the Madrid System, the Madrid Protocol allows centralized filing, but each designated country examines the mark under its own national law. The International Registration depends on the “basic mark” in the Office of Origin for the first five years; a successful challenge to the home mark (a “central attack”) can affect all designations. Cannabis brands should approach Madrid filings cautiously, limiting designations to jurisdictions where the goods and services are lawful, and should expect provisional refusals and local counsel requirements in stricter countries. U.S. rescheduling, once finalized, may improve prospects in countries with recognized medical frameworks, but the Madrid Protocol does not harmonize substantive law. National legality and public policy remain decisive.
A practical international cannabis-trademark strategy involves two primary steps. First, secure protection for ancillary goods and services and for hemp-compliant products in priority jurisdictions such as the EU, UK, Canada, and selected Latin American and Asia-Pacific markets, using conservative specifications and avoiding references to recreational use. Second, once U.S. rescheduling is finalized and if comparable medical frameworks exist abroad, consider targeted national filings or subsequent Madrid Protocol designations for medically compliant products, recognizing that the EUIPO and certain national offices will continue to scrutinize references to cannabis under public policy and morality standards.
CONCLUSION
The Executive Order represents the most explicit federal directive to reschedule marijuana to date. It signals substantial changes for research, healthcare pilot programs, and, following DEA finalization of rescheduling, the potential for federal trademark protection of lawfully distributed medical cannabis. The Order does not immediately alter USPTO practice. Trademark strategies should anticipate at least a six to twelve-month period for final DEA rulemaking, secure protection for ancillary and hemp-compliant goods at present, and prepare medical cannabis marks for federal protection once lawful interstate commerce is established. Internationally, applicants should continue to draft specifications and branding that comply with local legality and public policy, particularly in the EU and UK, and utilize the Madrid System judiciously. Effective portfolio management during this transition can preserve brand equity, reduce prosecution risk, and expedite protection as federal policy evolves.
As marijuana/cannabis rescheduling moves forward, businesses should act now to strengthen their trademark portfolios. Some key recommendations include:
- Consider filing U.S. trademark applications for marks tied to future federally lawful medical cannabis products;
- Consider expanding trademark protection coverage for lawful ancillary goods and services and hemp-compliant products;
- Consider securing state trademark registrations in all jurisdictions where cannabis operations are legal; and
- Consider international trademark filings with conservative specifications that avoid recreational-use references.
These proactive measures can help preserve priority, reduce enforcement gaps, and position brands for success once federal rescheduling is finalized. Because trademark law in this space remains complex and rapidly evolving, cannabis companies are strongly encouraged to consult an experienced trademark attorney or practitioner to develop a tailored strategy that fortifies their brand and manages their portfolio ahead of marijuana’s anticipated reclassification.
If your business is assessing how cannabis reclassification may affect brand strategy, trademark protection, or licensing, now is the time to review your IP portfolio. For guidance on these changes and effective trademark strategies, contact Caleb L. Green at clg@h2law.com or (702) 667-4832.