Ninth Circuit Court of Appeals Decision Signifies Step Forward for Delta-8 Products

June 15, 2022

Ninth Circuit Court of Appeals Decision Signifies Step Forward for Delta-8 Products

On May 19th, 2022, the Ninth Circuit Court of Appeals surprised the CBD world with its ruling on the legal status of Delta-8 THC products. The Court determined that hemp-derived Delta-8 THC falls under “hemp” products as stipulated by the 2018 Farm Bill, which considers hemp-derived products that contain no more than 0.3% THC to be legal.


The Ninth Circuit’s ruling comes as a response to the case of AK Futures LLC v . Boyd Street Distro, LLC No. 21-56133, 2022 U.S. App. LEXIS 13526. This lawsuit involved AK Futures (“AK”) suing Boyd Street Distro, LLC (“Boyd Street”) because they claimed that Boyd Street sold counterfeit versions of their Delta-8 THC products. AK sued Boyd Street in the United States District Court for the Central District of California for copyright and trademark infringement and the Court ruled in favor of AK. Boyd Street appealed this decision, claiming that it did not infringe on any copyrights or trademarks because copyrights and trademarks only protect legal products and Delta-8 was not a legal product.

The Ninth Circuit Court denied Boyd Street’s appeal under the argument that Delta-8 products are legal so long as they are hemp-derived products that meet the 0.3% Delta-9 THC concentration requirements, as outlined in the 2018 Farm Bill. Should there be any loopholes within the 2018 Farm Bill, the Court stated that this would be for the US Congress to decide on.

Delta 8 has long been the subject of controversy across state and federal authorities. Its previous unregulated status led to a lot of ambiguity surrounding Delta-8’s legality.

Trademarking Delta-8 Products in Light of Ninth Circuit Ruling

Many CBD brands filed Delta-8 trademark applications even prior to the Ninth Circuit Court’s recent ruling. As of 2022, the US Patent and Trademark Office noted that 57 trademark applications had been filed for Delta-8 products. Many initial applications were abandoned because of the uncertainty as to whether or not Delta-8 was legal. Even though the Ninth Circuit’s ruling is optimistic, it may still take some time to approve trademark applications on Delta-8 products. IP attorneys like William Strover, co-chair of the Intellectual Property Department at Cole Shotz PC, say federal courts like the Supreme Court will likely be the deciding factor for providing more clarity on the issue. Some say it is unlikely that the Supreme Court will weigh in, which may leave cannabis and hemp trademark petitioners in the same position they’re in now, relying on common law trademark rights.

What Does the Ninth Circuit Decision Change?

The Ninth Circuit Court’s ruling may not be a green light for the unrestricted sale of Delta-8 THC products, but it does open the door for reconsideration and regulation of Delta-8 THC by the FDA. Prior to now, most entities had little to no clarity on the legal status of Delta-8 products under federal law, which meant that most considered them illegal. The recent ruling is a step in the right direction towards trademarking Delta-8 products for sale across the US.

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