Courts have empirically upheld Congress’s standard for trademarks.

Federal trademark law does not protect marijuana products as long as marijuana remains a prohibited scheduled drug. 108 The U.S. Patent and Trademark Office currently rejects trademark registration applications from growers, producers, and sellers of marijuana because marijuana remains illegal under federal law. 109 In fact, marijuana-related businesses cannot avail themselves of any sort of trademark protection. For example, Kiva Health Brands LLC (KHB), which supplies natural foods under the trademark KIVA (issued in 2013), filed a trademark infringement lawsuit against Kiva Brands, Inc. (KBI), a maker of cannabis-infused chocolate and other "edibles," that had called its products "Kiva Confections" (sometimes without the "Confections" identifier) since 2010. 110KBI asserted prior use as an affirmative defense, claiming it was the senior user of KIVA. 111Acknowledging that KBI was asserting a common law right to the KIVA mark under California law, the court concluded that KBI was nevertheless defending against a federal trademark claim. 112Also, the court noted that KBI's prior use of the mark was illegal under federal law. 113"KBI therefore did not make lawful prior use [*752] of the mark," 114

[Footnote 114 Begins]

Id. ("To hold that KBI's prior use of the KIVA mark on a product that is illegal under federal law is a legitimate defense to KHB's federal trademark would put the government in the anomalous position of extending the benefits of trademark protection to a seller based upon actions the seller took in violation of that government's own laws.") (internal quotation marks omitted).

[Footnote 114 Ends]

and KHB succeeded in its trademark infringement claim.