Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA859895
`
`Filing date:
`
`11/21/2017
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91233966
`
`Party
`
`Correspondence
`Address
`
`Defendant
`Green Gorilla, Inc.
`
`DANIEL M CISLO
`CISLO & THOMAS LLP
`12100 WILSHIRE BLVD, SUITE 1700
`LOS ANGELES, CA 90025-7103
`UNITED STATES
`Email: tmk@cislo.com, sdiaz-sandoval@cislo.com
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Opposition/Response to Motion
`
`Daniel M. Cislo
`
`ttab@cislo.com, mark@cislo.com
`
`/Daniel M. Cislo/
`
`11/21/2017
`
`Applicants Brief in Opposition to Opposers Motion to Amend.pdf(1424293 bytes
`)
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`IN THE MATTER OF APPLICATION SERIAL NOS. 86/980,788, 86/980,789, 86/748,509
`
`
`
`
`THE GORILLA GLUE COMPANY,
`
`
`
`
`GREEN GORILLA, INC.,
`
`
`
`
`
`APPLICANT.
`
`OPPOSER,
`
`
`vs.
`
`OPPOSITION NO.: 91233966 (Parent)
`Opposition No. 91233991
`Opposition No. 91235990)
`
`APPLICANT’S BRIEF IN OPPOSITION
`TO OPPOSER’S MOTION TO AMEND
`NOTICE OF OPPOSITION
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`
`
`
`APPLICANT’S BRIEF IN OPPOSITION TO OPPOSER’S MOTION TO AMEND
`
`NOTICE OF OPPOSITION
`
`Opposer’s motion to amend its Notice of Opposition is premature, futile, and should be
`
`denied. While Fed.R.Civ.P. 15(a) may provide for a relatively liberal amendment policy, the
`
`Lanham Act and the Board’s own Rules are clear in providing that a Notice of Opposition is
`
`premature if filed prior to the publication for opposition of an applied-for mark. None of
`
`Applicant’s applied-for marks that Opposer seeks to introduce into this proceeding have
`
`published for opposition. Therefore, Opposer’s motion to amend to add such applied-for marks
`
`into this proceeding must, as a matter of law, and the Board’s own Rules, be denied.
`
`
`
`
`
`
`
`

`

`BACKGROUND
`
`
`
`Opposer, The Gorilla Glue Company (“Gorilla Glue” or “Opposer”) purports to own a
`
`variety of registered GORILLA GLUE word and/or stylized marks (and variants thereof)
`
`pertaining to adhesives, glues, and similar products. Applicant, Green Gorilla, Inc. (“Green
`
`Gorilla” or “Applicant”) is a start-up company that has filed a series of applications for its
`
`GREEN GORILLA word mark, stylized mark, and logo in connection with dietary supplements
`
`(human and pet), cosmetic products, and pet products, each of which contain (or will contain)
`
`non-psychoactive cannabidiol (CBD) derived from industrial hemp. It stands to reason,
`
`particularly in connection with the cosmetic products that are presently the subject of this
`
`Opposition, that no reasonable consumer would consider using a glue or adhesive product as a
`
`cosmetic item such as a lip balm or face cream. In other words, the goods Applicant seeks to
`
`register are completely different than those of Opposer, and Opposer’s insinuations about a
`
`likelihood of confusion can only be based on Opposer’s improper attempt to expand the scope of
`
`its alleged trademark rights in an unreasonable and anticompetitive manner that violates the
`
`antitrust laws. Frankly, Opposer’s assertions hover somewhere between far-fetched and sheer
`
`fantasy on the spectrum of ridiculousness. Its contentions about dilution are similarly absurd. In
`
`reality, this entire consolidated proceeding should be dismissed with prejudice in Applicant’s
`
`favor. If this were a district court proceeding, Applicant would likely request sanctions against
`
`Opposer for filing this motion.
`
`Opposer, however, is using these proceedings, and its greater size, to try to “bully”
`
`Applicant in hopes that Applicant will give up on its applications and allow Opposer to occupy a
`
`larger area of trademark rights than to which it is entitled. The goods of Opposer and Applicant
`
`are wholly distinct (cosmetics and pet products versus adhesives and glues). Furthermore, the
`
`
`
`2
`
`

`

`United States Patent and Trademark Office (“USPTO”) has not had any issues with (nor has
`
`Opposer opposed or sought to cancel) other applications bearing “GORILLA” in the mark and
`
`listing cosmetics or supplements as the goods. See e.g., Reg. Nos. 1,617,297 (“GORILLA” word
`
`mark in connection with vitamins, protein powders, and dietary supplements) and 4,173,630
`
`(“FRUIT GORILLA & FRIENDS THE CARING LIP BALM word plus design mark in
`
`connection with “cosmetics” and “lip balm” among other things).
`
`Rather, Opposer is purposely, misleadingly, fraudulently, and perjoratively referring to
`
`Applicant’s intended business as being “associated with the marijuana industry.” Applicant’s
`
`products contain CBD derived from industrial hemp. Contrary to the perception Opposer
`
`attempts to create by its purposely overbroad reference to “marijuana,” CBD is not psychoactive.
`
`Thus, Opposer’s generalized allegation that “Applicant and its intended goods are associated
`
`with the marijuana industry” is severely misleading. Applicant does not deal in any
`
`psychoactive products.1 Opposer has included such statements solely to sully Applicant’s
`
`reputation and fabricate support for its bogus dilution claim.
`
`Finally, it is worth noting that the exhibits submitted with Opposer’s motion pertaining to
`
`the alleged illegality of CBD should be taken with a grain of salt because at least:
`
`(1) there is presently a lawsuit in the Ninth Circuit Court of Appeals challenging the
`
`DEA’s attempt to schedule CBD, or associate CBD with a scheduled item and render it illegal
`
`(see, Hemp Industries Association v. Drug Enforcement Administration, Ninth Circuit Court of
`
`Appeals, Appeal No. 17-70162 (and Exhibit 4, attached hereto); see also, Hemp Industries
`
`Association v. Drug Enforcement Administration, 357 F. 3d 1012 (9th Cir. 2004); Hemp
`
`
`1 Even so, for Opposer to attempt to bolster its dilution claim by trying to create this impression
`is pointless inasmuch as the notion of lip balms, face creams, and the like being psychoactive is
`silly.
`
`
`
`3
`
`

`

`Industries Association v. Drug Enforcement Administration, 333 F. 3d 1082 (9th Cir. 2003) for
`
`prior examples of DEA’s actions in this context being rejected as exceeding the scope of its
`
`rulemaking authority and/or violating the procedures by which it may promulgate rules); and,
`
`(2) the DEA is simply wrong about CBD being subject to being a Schedule I drug
`
`classification because, inter alia, the U.S. government itself owns U.S. Patent 6,630,507 entitled
`
`“Cannabinoids as Antioxidants and Neuroprotectants” (patent issued October 7. 2003), in which
`
`the government itself admits that CBD has medically beneficial uses. Notably, a requirement for
`
`patentability is that the invention have “utility” under 35 U.S.C. § 101 (i.e., that there be some
`
`potentially useful – e.g., medically beneficial – aspect of the invention).2
`
`As it pertains to Opposer’s present motion to amend to include in this Opposition five (5)
`
`additional applications owned by Applicant, none of the applications that Opposer seeks to add
`
`into this proceeding have published for opposition. Opposer must have known as much, but it
`
`still filed this motion anyways. Accordingly, Opposer’s motion is premature, prejudicial, and
`
`futile, and should be denied.
`
`
`
`
`
`ARGUMENT
`
`Opposer’s motion to amend should be denied. While Applicant is familiar with the
`
`relatively liberal amendment rules under Fed.R.Civ.P. 15(a), such rules are not without
`
`limitation. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (leave to amend is
`
`not automatic). Of note here is the fact that leave to amend may be denied on grounds of undue
`
`delay in filing the motion, bad faith or dilatory motives on the part of the moving party, prejudice
`
`
`2 In addition, and as noted above, there is a significant dispute as to whether CBD is, or should
`be, illegal, as well as whether the DEA’s recent pronouncements related to CBD are even
`procedurally proper. See, Exhibits 1-4, attached hereto.
`
`
`
`4
`
`

`

`to the non-moving party if the motion is granted, and futility of amendment. Foman v. Davis,
`
`371 U.S. 178, 182 (1962). Application of the U.S. Supreme Court’s (and lower courts’) rules
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`warrant denial of Opposer’s motion on grounds of futility, bad faith, and prejudice.
`
`
`
`Opposer’s motion is undeniably futile because, according to 15 U.S.C. § 1063(a), 37
`
`C.F.R. § 2.101(c), and TBMP §§ 306.01 and 306.03, oppositions may only be filed after
`
`publication of the mark in the Official Gazette. According to the USPTO’s website, none of
`
`the applied-for marks filed by Applicant that Opposer seeks to add into this proceeding (see,
`
`Opposer’s Motion at Exhibit C) have published for opposition. Thus, the relief Opposer seeks is
`
`not even legally permitted. Futility of amendment can, by itself, justify the denial of a motion
`
`for leave to amend. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (citing, Outdoor
`
`Systems, Inc. v. City of Mesa, 997 F.2d 604, 614 (9th Cir. 1993)).
`
`
`
`Furthermore, Opposer failed to cite any on-point authority suggestiing that unpublished
`
`applications, even if appealed to the Board ex parte, can be opposed by a third party.
`
`As to bad faith, Opposer’s bad faith in filing this Opposition and bringing the present
`
`motion is noted in Applicant’s Answers to the Notices of Opposition (now consolidated), as well
`
`as elsewhere herein.
`
`As to prejudice, Applicant is being severely prejudiced by not only having to expend
`
`time and resources on this baseless consolidated opposition proceeding, as well as this frivolous
`
`motion; but also, by having to deal with Opposer’s actions in attempting to “bully” Applicant
`
`and force it to spend money defending these baseless proceedings, all of which is harming
`
`Applicant’s business because it is diverting resources from business development to responding
`
`to Opposer’s tactics in these proceedings. This type of improper bullying activity has not gone
`
`unnoticed by Congress. Per Vermont Senator Patrick Leahy:
`
`
`
`5
`
`

`

`I am concerned that large corporations are at times abusing the
`
`substantial rights Congress has granted them in their intellectual
`
`property to the detriment of small businesses. We saw a high-
`
`profile case like this in Vermont last year involving a spurious
`
`claim against Rock Art Brewery. When a corporation exaggerates
`
`the scope of its rights far beyond a reasonable interpretation in an
`
`attempt to bully a small business out of the market that is wrong.
`
`Letter to Congress in Report to Congress re: Trademark Litigation Tactics (April 2011) at 1
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`(attached hereto as Exhibit 5).
`
`
`
`Senator Leahy’s quote fits the present opposition proceeding to a “T.” Opposer The
`
`Gorilla Glue Company is the proverbial “800 pound gorilla” in the room, and Applicant, Green
`
`Gorilla, Inc. is a startup company. Opposer Gorilla Glue, as noted herein, is greatly exaggerating
`
`the scope of its trademark rights far beyond what is reasonable as a means of trying to bully
`
`Applicant Gorilla Glue out of the market. This is “wrong.”
`
`
`
`For these reasons, Opposer’s motion must be denied as premature and futile. And,
`
`because Opposer had to have known this, its motion also is brought in bad faith and is prejudicial
`
`to Applicant.
`
`
`
`CONCLUSION
`
`Aside from the fact that Opposer’s motion should be denied, Applicant desires to point
`
`out that it sees Opposer’s mere filing of this motion as a retaliatory measure solely aimed at
`
`attempting to sully Applicant’s reputation in the eyes of the Board (by attempting to attribute
`
`activities claimed to be illegal to Opposer), rather than a legitimate purpose such as presenting a
`
`
`
`6
`
`

`

`meritorious motion to the Board. Such bad faith, vexatious actions on the part of Opposer
`
`simply reaffirm and further prove that Opposer’s intentions with this proceeding is to attempt to
`
`“bully” Applicant out of business, which is consistent with the Affirmative Defenses pled by
`
`Opposer in response to the Notices of Opposition that are a part of this proceeding. For the
`
`aforementioned reasons, Opposer’s motion to amend should be denied (and this consolidated
`
`proceeding dismissed with prejudice in Applicant’s favor).
`
`
`
`
`
`Dated: November 21, 2017
`
`
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`
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`
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`
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`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/Daniel M. Cislo/
`Daniel M. Cislo
`dan@cislo.com
`Mark D. Nielsen
`mnielsen@cislo.com
`CISLO & THOMAS LLP
`Attorneys for Applicant,
`GREEN GORILLA, INC
`
`
`Enclosures: Exhibits 1-5
`
`CISLO & THOMAS LLP
`12100 Wilshire Boulevard, Suite 1700
`Los Angeles, California 90025-7103
`Tel: (310) 451-0647
`Fax: (310) 394-4477
`www.cislo.com
`\\Srv-db\tmdocs\17-32665\Applicant's Brief in Opposition to Opposer's Motion to Amend.docx
`
`
`
`
`
`
`
`
`
`
`7
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`

`

`
`
`
`
`
`
`
`
`
`
`
`EXHIBIT 1
`EXHIBIT 1
`
`

`

`Hold On! The DEA’s Move Against CBD May Not Be Legal | Hoban Law Group
`
`Page 1 of 10
`
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`Hold On! The DEA’s
`MARIJUANA
`Move Against CBD
`BUSINESS
`May Not Be Legal
`The DEA’s attempt to
`criminalize the status of
`cannabidiol (CBD) earlier this
`week has thrown the cannabis
`industry into an uproar.
`Hundreds of thousands of
`patients around the country
`rely on non-psychoactive CBD
`products to manage pain,
`inflammation, seizures, and
`other medical conditions.
`Hemp-derived CBD oil was, and
`continues to be, sold openly in
`American markets.
`
`ROBERT
`
`T.
`
`HOBAN
`
`Bob
`Hoban is
`an AV®
`Preeminent™
`rated
`attorney
`and
`seasoned
`commercial
`practitioner.
`He is
`recognized
`as one of
`the
`leading
`commercial
`hemp/cannabis
`practitioners
`nationwide,
`and has
`
`https://hoban.law/blog/2016/2016-12/hold-deas-move-against-cbd-may-not-be-legal
`
`11/9/2017
`
`

`

`Hold On! The DEA’s Move Against CBD May Not Be Legal | Hoban Law Group
`
`Page 2 of 10
`
`The DEA’s notice in the Federal
`Register on Wednesday,
`however, sent that entire
`industry sector into turmoil.
`The rule creates “unfair
`barriers for companies with
`cannabidiol in their products,”
`said Mark Malone, executive
`director of the Cannabis
`Business Alliance. “Patients
`will be forced to find
`cannabidiol from the
`unregulated black market.”
`Leah Heise, CEO of Women
`Grow, said the rule “has the
`potential to inflict substantial
`harm to a legitimate industry
`that has been operating legally
`worldwide for over a decade.”
`
`Cloaked in the guise of a
`bureaucratic technicality, DEA
`Administrator Chuck
`Rosenberg made an aggressive
`bid to wrap CBD into the
`Controlled Substances Act as a
`federally illegal Schedule I
`drug. You can read more about
`the rule’s specifics here.
`
`To recap: The DEA introduced a
`new drug code for “marihuana
`extracts.”  In the course of
`doing so, Rosenberg paused to
`consider the question of non-
`psychoactive cannabidiol
`(CBD). Rosenberg made it clear
`that the DEA considers all CBD
`
`closed
`over 450
`marijuana-
`related
`business
`transactions
`across
`the
`country.
`
`Read
`More
`
`RECENT POSTS
`
`Mediation: How to
`Resolve a Dispute
`Without Getting the
`Courts Involved
`NOV. 8, 2017
`
`Will 2018 be the year
`marijuana takes over?,
`FDA sends warning
`letters to CBD
`companies, including
`Colorado’s CW Hemp,
`Budding Industry:
`Marijuana’s Impact in
`Colorado
`NOV. 3, 2017
`
`Tips For Approaching
`Municipalities
`NOV. 2, 2017
`
`At Least 31 Legal
`Cannabis Farms Have
`
`https://hoban.law/blog/2016/2016-12/hold-deas-move-against-cbd-may-not-be-legal
`
`11/9/2017
`
`

`

`Hold On! The DEA’s Move Against CBD May Not Be Legal | Hoban Law Group
`
`Page 3 of 10
`
`Been Destroyed In The
`California Fires, The
`Smoking Hot
`Marijuana Show
`Advocates For
`Cannabis Legalization
`In New Mexico, Poll:
`Legal Marijuana
`Support At Record
`High In U.S.
`OCT. 27, 2017
`
`Could Africa Be On The
`Verge Of A
`Marijuana Race, Banks
`Gaining Confidence,
`Opening Doors To
`Navigable Pathway For
`Cannabusinesses,
`Recreational Marijuana
`Is Saving Lives In
`Colorado,
`OCT. 20, 2017
`
`to be illegal simply because it’s
`derived from a plant of the
`genus Cannabis.
`
`Over the past 48 hours,
`attorneys and legal scholars
`(and entrepreneur/activists like
`Harborside Health founder
`Steve DeAngelo, above) have
`pushed back with force. Many
`are arguing that the DEA’s
`move is a clear instance of
`illegal agency overreach. It’s a
`move that the same agency
`tried 15 years ago, in fact. And
`that attempt was ultimately
`slapped down by federal courts.
`
`Is my CBD oil illegal?
`
`Probably not. It depends on
`how you define “illegal.” Not to
`get cute, but when you start
`parsing the finer points of
`cannabis law things quickly
`turn vague and shifty. By
`publishing a final rule in the
`Federal Register this week, the
`DEA has essentially staked out
`new legal ground around CBD.
`The agency has formally stated
`that the DEA believes CBD
`products to be illegal Schedule
`I substances.
`
`Is that now the law? Not
`necessarily. A federal judge
`might well see things
`
`https://hoban.law/blog/2016/2016-12/hold-deas-move-against-cbd-may-not-be-legal
`
`11/9/2017
`
`

`

`Hold On! The DEA’s Move Against CBD May Not Be Legal | Hoban Law Group
`
`Page 4 of 10
`
`differently than the DEA
`administrator. In fact, there’s a
`lot of evidence to think that
`federal courts could and would
`invalidate the final rule as it
`pertains to CBD. We’ll get to
`that in a minute.
`
`First, you should know that
`there are two prominent
`safeguards in place protecting
`patients who currently
`purchase and use CBD
`products.
`
`The first is the Rohrabacher-
`Farr amendment, which
`prohibits the Justice
`Department (of which the DEA
`is a part) from interfering in
`any way with state medical
`marijuana laws and regulatory
`systems. CBD products fall
`under the protections of that
`amendment. This includes so-
`called CBD-only states, which
`allow patients to possess
`cannabidiol oil but not
`psychoactive THC. So the DEA
`may consider CBD oil illegal,
`but the agency can’t enforce
`that opinion in any of the 28
`medical marijuana states (plus
`the District of Columbia), or any
`of the 16 CBD-only states.
`
`There are a couple caveats to
`Rohrabacher-Farr, however. It
`
`https://hoban.law/blog/2016/2016-12/hold-deas-move-against-cbd-may-not-be-legal
`
`11/9/2017
`
`

`

`Hold On! The DEA’s Move Against CBD May Not Be Legal | Hoban Law Group
`
`Page 5 of 10
`
`doesn’t pertain to federal
`jurisdictions such as National
`Forests or National Parks. And
`the amendment must be
`reauthorized through
`Congressional spending bills.
`The latest re-up happened on
`Dec. 9, but it only runs through
`April 2017, at which point it
`would have to be reauthorized
`again.
`
`The second protection is the
`2014 Farm Act, which carved
`out an excemption to the
`Controlled Substances Act for
`states engaging in hemp
`cultivation pilot projects.
`
`The DEA tried this in
`2001. And lost.
`
`Cannabis industry veterans
`who have been in the game a
`while must have felt a sense of
`deja vu when they read the
`DEA’s final rule this week.
`Because the agency tried the
`same maneuver more than a
`decade ago. Back then,
`cannabis and hemp advocates
`took the DEA to court—and the
`DEA lost.
`
`“The DEA cannot create a
`statute,” Robert Hoban told me
`in an interview earlier this
`week. Hoban is a Denver-based
`
`https://hoban.law/blog/2016/2016-12/hold-deas-move-against-cbd-may-not-be-legal
`
`11/9/2017
`
`

`

`Hold On! The DEA’s Move Against CBD May Not Be Legal | Hoban Law Group
`
`Page 6 of 10
`
`attorney who specializes in
`
`cannabis law. He’s also an
`
`adjunct law professor at the
`
`University of Denver. “That can
`
`only be done by Congress.”
`
`Hoban mentioned legal
`
`precedent established by a case
`
`involving hemp products more
`
`than a decade ago. “Look at the
`
`HIA versus DEA case.”
`
`So I did. Here’s how that
`
`worked out.
`
`On October 9, 2001, the DEA
`
`published what it called an
`
`“Interpretive Rule” stating that
`
`“any product that contains any
`
`amount of THC is a Schedule I
`
`controlled substance.” The rule
`
`would have banned all hemp
`
`and hempseed products,
`
`including hempseed oil.
`
`With sneaky bureaucratic
`
`maneuvers like this, timing is
`
`everything. On October 9, 2001,
`
`Americans were still reeling
`
`from the shock of the 9/11
`
`attacks. Nobody was paying
`
`attention to obscure hemp
`
`regulations in the Federal
`
`Register.
`
`Nobody, that is, except a
`
`handful of hempseed oil
`
`companies whose products
`
`https://hoban.law/blog/2016/2016-12/hold-deas-move-against-cbd-may-not-be-legal
`
`11/9/2017
`
`

`

`Hold On! The DEA’s Move Against CBD May Not Be Legal | Hoban Law Group
`
`Page 7 of 10
`
`were effectively outlawed by
`
`the rule.
`
`A coalition of those companies,
`
`led by Dr. Bronner’s Magic
`
`Soaps, challenged the DEA rule
`
`in federal court.
`
`The case took more than two
`
`years to find resolution, but
`
`ultimately Dr. Bronner’s, et al,
`
`defeated the DEA. In two
`
`separate rulings in 2003 and
`
`2004, the US 9th Circuit Court
`
`concluded that non-
`
`psychoactive hemp had not
`
`been regulated by Congress
`
`under the scheduling system
`
`established by the Controlled
`
`Substances Act. Therefore, if
`
`the DEA wanted to schedule
`
`hemp, it would have to follow
`
`the established rules for doing
`
`so, which meant going through
`
`Congress. The DEA’s
`
`“Interpretive Rule” was not an
`
`interpretation at all, the judges
`
`said. It was an act of
`
`legislation. And only Congress
`
`can pass legislation. “The DEA
`
`has no authority” to regulate
`
`drugs that are not scheduled by
`
`Congress, the court concluded.
`
`The new rule is on
`even shakier ground
`
`https://hoban.law/blog/2016/2016-12/hold-deas-move-against-cbd-may-not-be-legal
`
`11/9/2017
`
`

`

`Hold On! The DEA’s Move Against CBD May Not Be Legal | Hoban Law Group
`
`Page 8 of 10
`
`Those cases, known
`collectively as Hemp Industries
`Association v. DEA, are the
`
`reason you can purchase
`
`hempseed oil at Whole Foods
`
`today. And it may be the
`
`hammer with which cannabis
`
`industry attorneys can smash
`
`the new CBD rule.
`
`In fact, this week’s CBD rule
`
`may actually be more difficult
`
`for the DEA to defend than its
`
`hemp rule 15 years ago.
`
`At least the 2001 hemp rule
`
`directly addressed hemp. DEA
`
`Administrator Rosenberg’s
`
`attempt to pull CBD into the
`
`Controlled Substances Act as a
`
`Schedule I drug wasn’t even the
`
`point of this week’s rule.
`
`Rosenberg outlawed CBD under
`
`the guise of answering a
`
`question about CBD products
`
`that contained no other
`
`cannabinoids. But make no
`
`mistake: When it comes to
`
`Federal Register entries, there
`
`isn’t a word or a comma that
`
`isn’t vetted five times from
`
`Tuesday by a platoon of
`
`government lawyers.
`
`Rosenberg and the DEA knew
`
`exactly what they were doing.
`
`On Thursday, Hoban said that
`
`his law firm was in
`
`https://hoban.law/blog/2016/2016-12/hold-deas-move-against-cbd-may-not-be-legal
`
`11/9/2017
`
`

`

`Hold On! The DEA’s Move Against CBD May Not Be Legal | Hoban Law Group
`
`Page 9 of 10
`
`communication with other
`
`cannabis attorneys and experts
`
`around the country. A singular
`
`or joint lawsuit challenging the
`
`DEA rule may be coming soon.
`
`Their chances against the DEA
`
`look promising. Hoban
`mentioned the earlier Hemp
`Industries v. DEA cases, as well
`as the recent challenges to the
`
`DEA’s attempt to ban Kratom.
`
`“Our team is diligently and
`
`expediently working to prepare
`
`a recommended strategy in
`
`response to the DEA’s Rule,”
`
`Hoban said.
`
`So don’t throw out your CBD oil.
`
`And stay tuned.
`
`Written for Leafly by Bruce
`Barcott 
`
`https://www.leafly.com/news/politics/hold-
`
`deas-move-cbd-may-not-legal
`
`FOLLOW US
`
`CONTACT US
`
`Your name
`
`https://hoban.law/blog/2016/2016-12/hold-deas-move-against-cbd-may-not-be-legal
`
`11/9/2017
`
`

`

`Hold On! The DEA’s Move Against CBD May Not Be Legal | Hoban Law Group
`
`Page 10 of 10
`
`TWITTER
`
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`
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`Symposium in Alamosa.
`LetsTalkHemp
`#
` panel and presenter
`
`sessions w/ Robert_Hoban@
` &
`David Bush! qoo.ly/j5dpu
`
`(cid:3095)
`
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`
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`
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`
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`
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`
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`
`COPYRIGHT 2017 - HOBAN LAW GROUP
`
`https://hoban.law/blog/2016/2016-12/hold-deas-move-against-cbd-may-not-be-legal
`
`11/9/2017
`
`

`

`
`
`
`
`
`
`
`
`
`
`EXHIBIT 2
`EXHIBIT 2
`
`

`

`11/18/2017
`
`DEA Clarifies Marijuana Extract Rule and CBD Legality | Kight on Cannabis
`
`DEA Clari(cid:161)es Marijuana Extract Rule and CBD
`Legality
`
`As many of you are aware, on December 14, 2016 the DEA
`implemented a rule regarding CBD and marijuana extract
`called the “Final Rule establishing a new Controlled
`Substance Code Number (drug code) for marijuana extract”
`(the Rule). Among other things, the Rule claimed that
`cannabidiol (CBD) and other cannabinoids were part of the
`newly established drug code and, consequently, were
`Schedule 1 substances under the Controlled Substances Act
`(CSA). Schedule 1 is the most restrictive class of drugs and is
`reserved for drugs that have “no currently accepted medical
`treatment use” and a “high potential for abuse.” I wrote about
`the wrongheadedness of the Rule here and focused my
`attention on the fact that the DEA purported to make illegal
`something (ie, CBD) that was never illegal in the (cid:161)rst place.
`CBD has never been listed as a controlled substance on the CSA. Importantly, CBD can be sourced from legal plants. I
`argued that the DEA had overstepped its authority. For this very reason, the DEA is currently a defendant in a lawsuit
`(cid:161)led in the 9th Circuit. We expect that suit to go well.
`
`Credit: http://marijuanastocks.com/dea-being-asked-to-
`
`remove-hemp-from-list-of-controlled-substances/
`
`Today, the DEA backed off of its position somewhat. Importantly, it acknowledged that CBD is legal if it comes from a
`part of the cannabis plant that is itself legal, such as the mature stalk of the cannabis plant, which is excluded from
`the CSA’s de(cid:161)nition of marijuana. In other words, the DEA (cid:161)nally admitted that CBD is not illegal in and of itself; rather,
`it is legal (or not) based on its source. I’ve been preaching this for a long time, but I have to admit that it’s strange to be
`validated in the form of an an o(cid:163)cial DEA clari(cid:161)cation!
`
`Here’s what the DEA said: “The new drug code (7350) established in [the Rule] does not include materials or products
`that are excluded from the de(cid:161)nition of marijuana set forth in the Controlled Substances Act (CSA). The new drug code
`includes only those extracts that fall within the CSA de(cid:161)nition of marijuana. If a product consisted solely of parts of the
`cannabis plant excluded from the CSA de(cid:161)nition of marijuana, such product would not be included in the new drug
`code (7350) or in the drug code for marijuana (7360).”
`
`This is important. It is the (cid:161)rst time that the Federal government has explicitly stated that cannabinoids (aside from
`THC which is separately scheduled) are not in and of themselves illegal substances. Most importantly, the DEA tacitly
`acknowledged that CBD sourced from industrial hemp cultivated lawfully pursuant to a State’s industrial hemp laws
`enacted under the 2014 US Farm Bill is legal. This is because “industrial hemp” is itself speci(cid:161)cally excluded from the
`CSA’s de(cid:161)nition of marijuana in Section 7606 of the Farm Bill. Since industrial hemp is excluded from the de(cid:161)nition of
`the CSA, and a “product consist[ing] solely of parts of the cannabis plant excluded from the CSA de(cid:161)nition of
`marijuana” is not included in the new drug code, then such product (in our case, CBD) is also excluded from the
`
`http://kightoncannabis.com/dea-clarifies-marijuana-extract-rule-and-cbd-legality/
`
`1/18
`
`

`

`DEA Clarifies Marijuana Extract Rule and CBD Legality | Kight on Cannabis
`11/18/2017
`de(cid:161)nition of marijuana under the CSA and is thus legal, at least at the Federal level. (Whether or not CBD can be made
`illegal at the individual state level is another question altogether which I’ll address in an upcoming post.)
`
`None of this is new. But it is good to get some clari(cid:161)cation from the DEA.
`
`Rod Kight is a lawyer based in Asheville, NC. He is licensed in North Carolina and Oregon and represents legal
`cannabis businesses. You can contact him by clicking here.
`
`Posted 3-14-2017.
`
` 
`
`March 14, 2017
`/ 49 Replies
`Category: Uncategorized
`Posted by:  Rod Kight
`
`49 thoughts on “DEA Clari(cid:161)es Marijuana Extract Rule and CBD Legality”
`
`Frank Cheff
`March 16, 2017 at 11:46 am
`
`Hi Rod, We appreciate your work and speci(cid:161)cally the informative articles.
`
`What about Crossing state lines? Interstate commerce?
`That is not clari(cid:161)ed and makes producers sellers vulnerable.
`
`Appreciate your response.
`
`Frank
`
`Rod Kight
`March 17, 2017 at 9:18 am
`
`Frank- Thank you for reading and commenting on my blog. Interstate commerce of industrial hemp and its
`products (such as (cid:161)bers, CBD, seeds, oils, etc.) is a tricky issue. At the Federal level interstate commerce is
`allowed. The The Omnibus Appropriations Act of 2016 (P.L. 114-113) (“the Funding Act”), passed on December
`18, 2015, contains a provision at section 763 that reads:
`
`“None of the funds made available by this act or any other act may be used… to prohibit the transportation,
`processing, sale or use of industrial hemp that is grown or cultivated in accordance with section 7606 of the
`Agricultural Act of 2014, within or outside the State in which the industrial hemp is grown or cultivated.”
`
`http://kightoncannabis.com/dea-clarifies-marijuana-extract-rule-and-cbd-legality/
`
`2/18
`
`

`

`
`
`
`
`
`
`
`
`
`
`EXHIBIT 3
`EXHIBIT 3
`
`

`

`11/18/2017
`
`Has the DEA painted itself into a corner on hemp based CBD? A legal analysis of the DEA's current position. | Kight on Cannabis
`
`Has the DEA painted itself into a corner on
`hemp based CBD? A legal analysis of the DEA’s
`current position.
`
`As many of you know, the Hemp Industries Association, along with
`Centuria Natural Foods, Inc. and RMH Holdings, LLC (the Petitioners),
`are suing the DEA over the recently enacted Marihuana Extract
`Rule (the Rule). The case is pending before the 9th Circuit Court of
`Appeals in San Francisco and the outcome- good or bad- will impact
`the hemp and CBD industries. I’ve written about the Rule here and
`discussed the DEA’s clari(cid:161)cation of it here. Kudos to attorneys Bob
`Hoban, Patrick Goggin, and Garrett Graff of the Hoban Law Group for
`their hard work and diligent efforts representing the Petitioners. I
`discussed the case with Bob Hoban before it was (cid:161)led (one of my
`domestic CBD clients was nearly a participant in the case), and with
`all three attorneys individually after it was (cid:161)led. As I will describe, I am
`cautiously optimistic that the Court will enter a favorable ruling.
`Certainly, the case is in good hands. That being said, it is important to
`understand the DEA’s current position, which it has now articulated in
`the brief it (cid:161)led on June 2, 2017. In this post I will discuss pertinent
`parts of the brief, primarily focusing on the DEA’s legal position, and
`conclude with my view that the DEA has painted itself into a legal
`corner.
`
`The DEA seems to have painted itself into a corner
`
`with respect to hemp based CBD.
`
`In particular, I intend to discuss a few things. First of all, and perhaps most importantly, I’m going to talk about how the
`DEA lent further support to the “source theory” of CBD legality that I have articulated in the past. The source theory is
`simply the notion that CBD is legal, or not, based on its source. I believe that the DEA’s recognition of this in a legal
`brief is an unquali(cid:161)edly good thing and I want to underline and bring attention to it. Secondly, the the DEA engages in
`circular reasoning in its brief. This is obviously a bad thing in and of itself, particularly if it gets traction with the Court.
`But it also belies the absence of a strong legal position. I don’t intend to get overly worked up about this tactic;
`however, I believe it’s important to understand the DEA’s obfuscation strategy because it’s also being employed by
`some other powerful parties (read Big Pharma), but that’s for a future post. Finally, I don’t intend for this to be a
`comprehensive “blow by blow” of all the DEA’s arguments. There are some very interesting legal issues presented by
`the