Cannabis-themed underwear brands sit in a unique space: they sell completely legal apparel, yet their branding often references a federally restricted industry. This combination creates unusual trademark challenges that traditional fashion labels rarely face.
The Federal Lawful-Use Problem
To register a trademark with the U.S. Patent and Trademark Office (USPTO), a brand must show lawful use in interstate commerce. Because marijuana remains illegal under the federal Controlled Substances Act, the USPTO refuses trademarks for products that reference or involve federally prohibited cannabis activities.
Apparel itself is lawful, but cannabis underwear brands can still encounter refusals if the USPTO believes their mark promotes or is tied to illegal cannabis sales. This has happened in cases involving marks appearing to reference THC consumption, marijuana paraphernalia, or products seen as facilitating cannabis use. Underwear brands must therefore avoid wording, product descriptions, or marketing imagery that suggests involvement with cannabis products rather than simply cannabis-inspired artwork.
The Ornamental Use Barrier
Many cannabis underwear labels rely on visual statements—large marijuana leaves, all-over bud prints, or 420-themed humor. The challenge is that the USPTO may classify these elements as ornamental rather than as true trademarks.
If a symbol or phrase appears merely as decoration across the fabric, it may not qualify as a source identifier. To overcome this, cannabis-themed underwear brands typically need to:
- Use a distinct, consistent logo on waistbands or tags.
- Show the mark on product packaging and hangtags.
- Avoid relying solely on large decorative graphics as the brand’s “mark.”
This distinction becomes crucial. A giant leaf pattern may look great on underwear but won’t function as a protectable trademark unless paired with a proper logo or brand name used in a trademark-consistent manner.
Crowded Cannabis Imagery and Weak Distinctiveness
Another challenge is that cannabis culture relies on a small pool of common symbols: green color palettes, leaf silhouettes, joint illustrations, and 420 references. Because these images are widely used, they are considered weak identifiers.
The result:
- Many cannabis apparel trademarks are refused for being overly descriptive or too similar to existing marks.
- Puns or slang terms commonly associated with weed often fail to meet threshold distinctiveness.
For underwear brands, this means generic “weed leaf” visuals or simple THC-themed jokes may not be strong enough to secure trademark protection.
Complications After the Farm Bill
The 2018 Farm Bill, which legalized hemp containing less than 0.3% THC, created opportunities for certain hemp-derived goods to be trademarked. However, USPTO guidance still imposes restrictions, especially where the Food and Drug Administration regulates CBD-infused products.
For underwear labels that also sell hemp creams, CBD topicals, or related items, this means trademark applications must clearly separate lawful apparel from any cannabis-adjacent goods that the USPTO might view as unlawful.
Why Many Brands Use a Layered Protection Strategy
Because federal registration is not always straightforward, cannabis-themed underwear companies often rely on a layered strategy that includes:
- Federal trademarks for clearly lawful apparel.
- State trademark registrations in legalized markets.
- Common-law rights built through actual use.
- Trade dress or design patents for packaging, waistband marks, or unique design elements.
These approaches help establish brand protection even when some cannabis elements cannot be federally registered.
The Bottom Line
For cannabis-themed underwear brands, securing a trademark is more complex than simply filing an application. Federal cannabis restrictions, ornamental-use refusals, and a crowded field of marijuana imagery mean brands must be highly strategic in how they present and protect their marks. Clear logo placement, careful branding language, and professional legal guidance make all the difference when building a defensible identity in this evolving niche.