States fail. They lack enforcement capabilities and can’t go across borders.

Marijuana businesses also face barriers to using trademark laws to protect their [*1243] growing brands. 177The United States has a dual trademark system: federal law provides trademark protection under the Lanham Act 178and state governments provide trademark protection under both state statutes and common law. 179 Taking full advantage of federal trademark law requires successful registration of a trademark. 180 Federal trademark law requires the mark be used in legal commerce. 181 The United States Patent and Trademark Office (USPTO) has denied marks that it deems associated with marijuana. 182Federal courts have also refused to give priority to a senior user of a mark on the basis that it had used the mark in association with marijuana. 183

The United States has a dual system for trademark law, but, unlike its dual system for banking regulation, 184state trademark law is able to exist outside of federal trademark law. Even if the USPTO refuses to register marijuana-related marks, states can still provide protection for the trademarks of marijuana businesses under state law. State trademark protection only extends, however, to the borders of the state itself 185and "may be limited to areas of actual use and natural expansion." 186 But marijuana businesses may run into issues even in states that have legalized marijuana. Efforts failed in California to clarify that marks can be protected if they are associated with the sale of marijuana in compliance with state law. 187 California has nonetheless allowed the state-level registration of marijuana marks. 188 State courts [*1244] have been willing to enforce state-registered marijuana marks against junior users. 189

There are steps available to marijuana businesses to mitigate limited access to federal trademark registration. Marijuana businesses can register a mark used with a marijuana good for another type of legal use, such as on clothing. 190This may chill future use of the mark by a would-be junior user. 191