The Constitutional Court judgment which decriminalises the private use of cannabis has also resulted in an emotional high for a lot of South Africans.

As predicted, this has placed a lot of existing and potential companies on the frontline wanting to create a brand for their business in order to grow and distribute cannabis in South Africa. Unfortunately, the high of these businesses need to ‘hog’ their plans for their trade mark applications for their brands – but possibly not for long.

The reason why these companies should hold off on their trade mark application for now is because of the fact that only ‘private’ use of cannabis has been decriminalised in the Constitutional Court judgment. Thus, the sale and distribution of cannabis is still very much illegal and a criminal offence in South Africa.

The function of a trade mark is clear, and in short it can be defined as a mark which represents the origin of the goods or services for the purpose of indicating that they are the goods of the proprietor of such a mark by virtue of the manufacture and/or dealing in such goods or services.

Since ‘dealing’ in cannabis is still an offence, the trade marks that will be filed for cannabis and the cultivating and distribution thereof will be void and without commercial value as this new trade mark will not be able to fulfil its main function as a badge of origin. Such a trade mark application will also be contrary to law – which is a bar to trade mark registration.

Our advice is to wait and see what the amended laws in respect of cannabis will be in their finalised form before considering conducting business and applying for a cannabis based trade mark as this can result in wasted costs.

Please do not hesitate to contact us in the event that you need any further trade mark advice.