Yes. A cigar, tobacco, or vape brand can potentially receive federal trademark protection in the United States when the mark functions as a source identifier, is sufficiently distinctive, does not create a likelihood of confusion with earlier trademarks, and satisfies the USPTO’s lawful-use requirements.

For most cigars, tobacco products, electronic cigarettes, and vaping products, International Class 34 is particularly important. Under the Nice Classification, Thirteenth Edition, version 2026, Class 34 expressly includes tobacco and tobacco substitutes, cigarettes and cigars, electronic cigarettes, oral vaporizers for smokers, smokers’ articles, and matches. It also includes certain related products such as cigar humidors, lighters for smokers, and flavorings for electronic cigarettes.

However, tobacco and vape trademarks involve an additional issue that many ordinary consumer-product brands do not face. Trademark use relied upon for federal registration must be lawful under applicable federal law. TMEP § 907 states that use in commerce must be lawful to support federal registration and permits the USPTO to investigate compliance when the sale or transportation of a product is regulated by an Act of Congress.

That distinction is especially important for vape and other new tobacco products. FDA currently states that, subject to statutory exceptions, a new tobacco product generally must receive the required FDA marketing authorization before it may legally be marketed in the United States. A trademark application does not provide that authorization, and a USPTO registration should never be treated as FDA approval of the underlying product.

For cigar, tobacco, and vape companies, trademark strategy and regulatory compliance therefore need to be considered together.

Can Cigar Brands Be Federally Trademarked?

Yes.

A distinctive cigar brand name can potentially be registered with the USPTO for cigars and related tobacco products.

Trademark law applies to cigar brands in essentially the same way it applies to other lawful consumer-product brands. The proposed mark should identify the commercial source of the cigars rather than merely describe their characteristics, ingredients, geographic origin, strength, flavor, or quality.

For example, a distinctive coined or arbitrary name generally provides a stronger trademark foundation than wording that simply tells purchasers the product is a premium hand-rolled cigar.

The company should also conduct a clearance search before committing to boxes, bands, packaging, websites, distributor agreements, or other expensive branding materials.

An existing similar mark for cigars, cigarettes, tobacco, or commercially related smokers’ products can create a Section 2(d) likelihood-of-confusion issue even when the names are not identical.

Can a Tobacco Brand Be Trademarked?

Yes, provided the proposed trademark and underlying use satisfy federal trademark requirements.

Class 34 encompasses tobacco and tobacco substitutes, cigarettes, cigars, electronic cigarettes, oral vaporizers for smokers, and various smokers’ articles under the current 2026 Nice Classification.

The trademark application must still identify the actual goods with sufficient specificity.

A company should not simply identify everything as “tobacco products” when a more precise identification is required or available.

The USPTO requires applicants to provide clear and accurate identifications of the goods and services associated with the mark. For use-based applications, the trademark must actually be used in commerce for the claimed goods. For intent-to-use applications, the applicant must possess a bona fide intention to use the mark for everything identified.

Can You Trademark a Vape Brand?

Potentially, yes.

Electronic cigarettes and oral vaporizers for smokers are specifically included within International Class 34. The class also includes flavorings for use in electronic cigarettes or oral vaporizers for smokers.

Classifying the goods correctly, however, is only part of the analysis.

Vape products can fall within FDA’s tobacco-product regulatory framework. FDA states that new tobacco products generally cannot legally enter the U.S. market without the required marketing authorization. For ENDS, or electronic nicotine delivery systems, FDA explains that a premarket tobacco product application is generally the pathway through which manufacturers seek authorization for new products.

Accordingly, a vape company should not assume that obtaining or applying for a trademark establishes that its products are legally marketable.

Trademark registration and FDA marketing authorization are separate federal processes.

What Trademark Class Covers Cigars and Tobacco Products?

The principal class is International Class 34.

Under NCL 13-2026, Class 34 covers tobacco and tobacco substitutes, cigarettes and cigars, electronic cigarettes and oral vaporizers for smokers, smokers’ articles, and matches.

The class also expressly includes certain related accessories and containers, including lighters for smokers, ashtrays for smokers, tobacco jars, snuff boxes, and cigar humidors.

However, not every product connected with tobacco or vaping belongs in Class 34.

For example, the current Nice explanatory notes specifically exclude batteries and chargers for electronic cigarettes from Class 34 and place those goods elsewhere, including Class 9.

The correct classification therefore depends on the particular product.

What Trademark Class Covers Electronic Cigarettes?

Electronic cigarettes are expressly included in Class 34 under the current Nice Classification.

The same class also covers oral vaporizers for smokers and certain flavorings intended for use with electronic cigarettes or oral vaporizers.

A company selling a complete electronic cigarette system may nevertheless have goods in additional classes.

For example, separate batteries and chargers are not included within Class 34 according to the current Nice explanatory notes.

A vape brand should therefore map the entire product line rather than assume that every electronic component automatically belongs in Class 34.

Does an Online Tobacco or Vape Store Need Class 35?

Potentially.

International Class 35 can cover qualifying retail and online retail store services. The current Nice explanatory notes describe Class 35 as including the bringing together of goods for the benefit of others so customers can conveniently view and purchase them, including through retail stores and electronic media.

But merely selling your own branded goods does not automatically mean your product trademark needs Class 35.

USPTO guidance distinguishes the sale of one’s own goods from providing retail services. The TMEP explains that “sales” themselves cannot be identified as the primary registrable service.

Accordingly, a tobacco company selling its own cigar brand should focus first on the goods themselves. A separately branded retail operation selling products from multiple manufacturers may raise additional Class 35 considerations.

Can a Cigar Lounge Have a Separate Trademark?

Potentially, yes.

A cigar manufacturer, retailer, and cigar lounge may use one name across several different commercial activities, but those activities can fall into different classes.

For example, USPTO records include registrations for cigar lounge services in Class 43.

A company operating both a cigar brand and a lounge should therefore distinguish the trademark used on physical cigars from the trademark used to identify hospitality or lounge services.

One business name can potentially require protection across several classes if consumers encounter it in several legally distinct commercial roles.

Does USPTO Registration Mean the FDA Has Approved a Vape or Tobacco Product?

No.

This distinction should be stated clearly.

The USPTO administers federal trademark registration. FDA regulates tobacco-product marketing and distribution under the Federal Food, Drug, and Cosmetic Act.

FDA specifically states that a tobacco marketing authorization should not be described as the product being “FDA approved.” A marketing order means the product has satisfied the applicable statutory pathway for marketing, not that FDA has found the tobacco product safe.

Similarly, a trademark registration means that the trademark has satisfied the applicable federal trademark-registration requirements. It does not authorize the product’s sale.

A company may therefore need both an intellectual property strategy and a separate FDA regulatory strategy.

Why Does FDA Compliance Matter to a USPTO Trademark Application?

Because federal trademark registration generally requires lawful use in commerce.

TMEP § 907 provides that trademark use relied upon for registration must comply with applicable federal law. The USPTO can inquire into compliance when another Act of Congress regulates the sale or transportation of the goods.

This does not mean every trademark examining attorney conducts a comprehensive FDA regulatory investigation.

However, when the record indicates a clear federal-law issue, unlawful commercial activity may fail to support registration.

This principle has appeared in trademark cases involving federally regulated or prohibited goods and should be taken seriously by businesses in regulated industries.

For tobacco and vape companies, a use-based filing should therefore not be treated as isolated from the legal status of the goods being sold.

What Is a “New Tobacco Product” Under FDA Rules?

FDA defines a “new tobacco product” generally as a tobacco product that was not commercially marketed in the United States as of February 15, 2007, or a qualifying modification of a tobacco product marketed after that date.

FDA currently states that, before introducing a new tobacco product into the U.S. market, a company generally must submit the appropriate application and receive authorization, subject to the statutory pathways and exceptions.

The available pathways can include a Premarket Tobacco Product Application, a Substantial Equivalence Report, or an exemption from substantial equivalence where legally applicable.

Companies should not assume that the same regulatory pathway applies to every cigar, tobacco, or vape product.

Trademark counsel and tobacco regulatory counsel may therefore need to coordinate before a use-based federal application is filed.

Do All Cigars Require the Same FDA Premarket Authorization?

Not necessarily.

FDA’s tobacco rules distinguish among products based on their regulatory history and the applicable statutory pathway.

FDA currently explains that products commercially marketed in the United States as of February 15, 2007 can qualify as pre-existing tobacco products and do not require premarket authorization in the same manner as new tobacco products.

Other products can have different regulatory histories or authorization requirements.

A trademark attorney should therefore avoid making assumptions about a cigar’s regulatory status solely from the fact that cigars generally fall within Class 34.

Classification answers the trademark-class question. It does not answer the FDA-marketability question.

Can You File a Trademark Before the Tobacco or Vape Product Launches?

Potentially, yes.

A company with a bona fide intention to use a trademark can file a Section 1(b) intent-to-use application before actual commercial use begins.

This can be particularly useful in a regulated industry because brand development, packaging, regulatory submissions, manufacturing, distributor discussions, and other preparations may occur well before legal commercial launch.

The applicant must possess a real, good-faith intention to use the trademark for the goods identified in the application.

An intent-to-use filing does not require the company to claim that the products are already being lawfully sold.

However, the applicant will ultimately need qualifying lawful use before a registration based on U.S. use can issue.

The filing basis therefore matters greatly for pre-launch tobacco and vape brands.

Is an Intent-to-Use Application Better if FDA Authorization Is Still Pending?

It may be more appropriate than filing a Section 1(a) use-based application when lawful commercial use has not yet begun.

A Section 1(a) application requires the trademark to be in use in commerce on all claimed goods as of the application filing date. TMEP Chapter 900 states this requirement expressly.

An intent-to-use application, by contrast, allows the trademark filing process to begin before use, provided the applicant has the necessary bona fide intent.

That does not resolve the regulatory process or guarantee that FDA will authorize a product.

It simply prevents the applicant from having to claim existing use prematurely.

The appropriate filing strategy should be evaluated against the particular product’s regulatory status.

What Trademark Specimen Can a Cigar Brand Use?

For goods, an acceptable trademark specimen generally must show the mark used on or in connection with the goods in actual commerce.

For a cigar brand, the trademark may appear on cigar boxes, bands, packaging, containers, labels, or other qualifying materials associated with the goods.

An ecommerce product page may also potentially serve as a specimen when it satisfies the USPTO’s requirements for a point-of-sale display.

The evidence must show actual trademark use, not merely an internal design concept.

A rendered cigar box or digital label created before commercial use generally should not be presented as though it were an actual marketplace specimen.

For a pre-launch brand, an intent-to-use application allows the filing process to begin before such a specimen is available.

What Trademark Specimen Can a Vape Brand Use?

Similar principles apply.

A trademark can potentially appear directly on an electronic cigarette, its packaging, labels, containers, or an appropriate point-of-sale webpage.

However, the specimen issue has an additional regulatory dimension.

A specimen showing the product offered for sale may raise the question of whether that commercial sale or distribution is lawful under federal tobacco laws.

This is why vape companies should coordinate specimen strategy with regulatory status rather than simply uploading the first online product listing they can find.

Trademark evidence should reflect genuine lawful commercial use.

Should a Cigar or Vape Brand Conduct a Trademark Search Before Launch?

Yes.

Trademark clearance should occur before the company invests heavily in packaging, labels, molds, product photography, distributor agreements, retail displays, or regulatory submissions tied to a particular brand.

The USPTO may refuse registration under Section 2(d) if an earlier trademark creates a likelihood of confusion.

The marks do not have to be identical. Similarities in appearance, sound, meaning, or overall commercial impression can be enough when the goods or services are sufficiently related.

A proper search should therefore examine more than identical Class 34 registrations.

The search may need to evaluate similar word marks, phonetic equivalents, logos, related tobacco goods, smokers’ accessories, retail services, lounge services, and relevant common-law marketplace use.

Can Two Cigar Brands Have Similar Names?

Possibly, but similarity can create substantial risk when both marks identify cigars or closely related tobacco products.

Cigar purchasers may encounter competing brands through the same tobacconists, distributors, ecommerce stores, lounges, trade events, and advertising channels.

When the goods are highly similar or identical, differences between the marks may need to be more significant to avoid confusion.

Adding words such as CIGAR, TOBACCO, PREMIUM, RESERVE, or CIGARS to an existing distinctive mark does not necessarily eliminate the conflict because those additional terms may have limited source-identifying significance.

The dominant portions of the marks should be evaluated carefully.

Can a Cigar Brand Use a Geographic Name?

Potentially, but geographic names can create additional trademark issues.

A mark that is primarily geographically descriptive of the origin of the goods may face a refusal under Section 2(e)(2).

This can arise with tobacco products because geographic terminology can carry significant marketing value, especially when consumers associate certain locations with particular tobacco traditions.

A company should distinguish between use of a geographic reference as a distinctive component of a larger mark and wording that primarily tells consumers where the product comes from.

Geographic naming also requires careful factual accuracy. A geographic claim used in marketing can create issues beyond trademark law if it inaccurately communicates product origin.

Can Descriptive Cigar or Vape Names Be Trademarked?

Descriptive names can be difficult to register and generally provide weaker protection than distinctive marks.

A brand name that immediately describes flavor, strength, ingredients, quality, or another characteristic of the goods may receive a descriptiveness refusal.

This can be particularly relevant to product names centered on flavor or sensory characteristics.

Companies often benefit from selecting a distinctive house brand while using descriptive wording separately to tell consumers about the particular product.

The trademark identifies the source. Descriptive wording explains the product.

That distinction can produce a stronger long-term portfolio.

Can Flavor Names Be Trademarked Separately?

Sometimes, but not every flavor designation functions as a trademark.

A flavor name may merely describe the particular variety of the product rather than identify commercial source.

A distinctive product-line or sub-brand name used consistently and prominently may have a stronger trademark function.

The regulatory side should also be reviewed separately because federal rules applicable to tobacco-product ingredients, modifications, or marketing are not determined by whether the flavor name qualifies as a trademark.

A trademark application cannot be used to establish regulatory permission for a particular flavor or formulation.

Can a Tobacco or Vape Company Protect Its Logo Separately?

Yes.

A tobacco company can potentially register both its word mark and a distinctive logo.

A standard-character registration protects the wording without limiting it to a particular font, style, size, or visual presentation. A special-form application can protect the particular logo or stylized design.

Separate protection can be valuable because cigar boxes, bands, vape packaging, point-of-sale displays, and advertising often rely heavily on visual branding.

A logo may also continue to identify the company even when individual products or formulations change.

The appropriate priority depends on the commercial importance of the visual mark.

Can Cigar Bands and Packaging Receive Trademark Protection?

Potentially.

The brand name and logo appearing on cigar bands and packaging may be protected as conventional trademarks.

Distinctive nonfunctional packaging may also develop trade dress protection in appropriate circumstances.

Trade dress can potentially protect the overall source-identifying appearance of packaging, including combinations of shape, colors, graphics, and other nonfunctional features.

However, not every ornate cigar box or vape package automatically constitutes protectable trade dress.

The presentation must satisfy the applicable distinctiveness and functionality rules.

Copyright may separately protect original illustrations or artwork appearing on packaging.

A sophisticated brand may therefore develop several overlapping forms of intellectual property protection.

Can a Manufacturer Own the Cigar or Vape Trademark?

Potentially, but manufacturing alone does not automatically establish trademark ownership.

A brand company can hire a contract manufacturer or private-label supplier to make goods under the brand company’s trademark.

USPTO guidance recognizes that when a manufacturer applies the applicant’s trademark to goods at the applicant’s instruction, the manufacturer’s activity can be treated as equivalent to the applicant applying the mark itself.

The ownership question should therefore be resolved through the actual commercial relationship and agreements.

This can be especially important for imported cigars, contract-produced tobacco products, and private-label vaping products.

The agreement should address trademark ownership, packaging, quality control, regulatory responsibilities, and what happens to branded inventory when the manufacturing relationship ends.

Who Should File the Trademark Application?

The actual trademark owner should file the application.

Depending on the structure, that may be an individual entrepreneur, LLC, corporation, or another entity.

The company should not casually file in the name of a distributor, contract manufacturer, founder, or retailer simply because that party is handling the application process.

USPTO ownership rules can make applications filed by the wrong party difficult or impossible to correct.

Ownership should therefore be determined before filing.

For businesses operating through several entities, the company should also coordinate trademark ownership with FDA registrations, distribution arrangements, licensing, and other regulatory records so the overall business structure remains coherent.

What if the Cigar or Vape Products Are Manufactured Outside the United States?

Foreign manufacturing does not automatically prevent U.S. trademark registration.

Many cigar and tobacco companies manufacture products outside the United States while maintaining U.S. trademark rights.

The brand must still satisfy the applicable trademark basis and identify the correct owner.

FDA requirements may separately apply when tobacco products are imported into and marketed in the United States.

FDA’s current manufacturing guidance states that domestic manufacturers and importers of qualifying new tobacco products must determine the applicable pathway and obtain authorization before marketing those products where required.

Importation, trademark ownership, and FDA marketability should therefore be analyzed separately.

Can a Distributor Own the U.S. Trademark for a Foreign Tobacco Brand?

Potentially, depending on the parties’ actual ownership agreement, but a distributor does not automatically acquire trademark ownership merely by selling another manufacturer’s products.

USPTO rules generally distinguish the manufacturer or brand owner’s trademark rights from the commercial role of an importer or distributor.

An agreement can allocate particular trademark rights when legally appropriate, but the parties should document the arrangement clearly.

This becomes particularly important when a foreign manufacturer and U.S. distributor separate after the brand has developed substantial goodwill.

A dispute that might have been avoided with a clear ownership clause can become a major U.S. trademark conflict.

Can Tobacco and Vape Brands Obtain Trademark Protection for Accessories?

Yes, when the company genuinely uses or intends to use the trademark for those goods and the products are correctly classified.

Class 34 includes many smokers’ accessories and containers, including lighters for smokers, ashtrays for smokers, tobacco jars, snuff boxes, and cigar humidors.

Other accessories may fall elsewhere.

For example, batteries and chargers for electronic cigarettes are expressly excluded from Class 34 under the current Nice explanatory notes.

A company planning a broad lifestyle or accessory line should therefore review each product individually.

A Class 34 registration for cigars does not automatically become direct federal registration coverage for clothing, bags, electronics, or other merchandise carrying the same brand.

Can a Cigar Brand Trademark Clothing and Merchandise Too?

Potentially.

A cigar company may expand its brand onto shirts, hats, jackets, glassware, bags, or other merchandise.

Those goods can fall into separate International Classes.

For example, clothing generally falls within Class 25 rather than Class 34.

The company should determine whether the merchandise functions merely as promotional material or constitutes a meaningful commercial product line worth separate registration.

Using one trademark across several categories can create a broader portfolio, but each claimed category must satisfy the applicable USPTO use or bona fide-intent requirements.

Can a Cigar or Vape Trademark Be Licensed?

Yes.

The trademark owner can authorize another party to manufacture, distribute, or sell authorized products under the mark while retaining ownership.

Trademark licensing requires appropriate control over the nature and quality of the branded goods.

Regulatory responsibilities should be addressed separately.

A trademark license does not give a licensee permission to market an unauthorized tobacco product under federal law.

Likewise, an FDA marketing order does not automatically grant a business trademark rights to another company’s brand.

The intellectual property and regulatory rights should be analyzed independently and then coordinated contractually.

Can You Enforce a Tobacco or Vape Trademark Against Counterfeiters?

Potentially.

If another seller uses an identical or confusingly similar mark on tobacco products, electronic cigarettes, or other related goods, federal trademark law may provide enforcement remedies.

Counterfeit goods bearing a spurious mark identical or substantially indistinguishable from a qualifying registered trademark can trigger specialized federal remedies when statutory requirements are satisfied.

For tobacco and vape products, counterfeit goods can also raise regulatory issues if the seller is marketing unauthorized or misbranded products.

The trademark owner should preserve listings, seller information, photographs, packaging, receipts, shipping records, and physical samples before taking enforcement action.

Registration can strengthen marketplace complaints, cease-and-desist demands, and federal enforcement.

Can a Tobacco Trademark Be Recorded With U.S. Customs and Border Protection?

Potentially, when the federal trademark satisfies CBP’s recordation requirements.

Trademark owners with qualifying Principal Register registrations for goods can separately record those registrations with CBP to assist border enforcement against infringing imports.

This can be useful for consumer brands whose counterfeit products enter the United States through international supply chains.

For cigar and vape companies, customs enforcement should be coordinated with the broader regulatory framework governing importation of tobacco products.

Trademark recordation helps address intellectual property infringement. It does not substitute for the regulatory requirements governing lawful tobacco-product importation and marketing.

Should Trademark Clearance Occur Before an FDA Tobacco Application?

Ideally, brand clearance should occur early enough to avoid significant investment in a name that later proves unusable.

For a regulated product, changing the brand late can create more complications than changing an ordinary consumer-product name.

The company may already have developed packaging, regulatory records, manufacturer documentation, marketing materials, distributor relationships, websites, and other materials associated with the original brand.

Trademark clearance should therefore be integrated into early product development.

A company should avoid spending substantial resources building a regulated product around a mark before determining whether another business possesses conflicting rights.

Should Regulatory Counsel and Trademark Counsel Coordinate?

For many tobacco and vape launches, yes.

Trademark counsel can address name availability, ownership, USPTO filing strategy, classification, specimens, registration, licensing, and enforcement.

Regulatory counsel can address whether the underlying tobacco product may legally be manufactured, imported, marketed, distributed, and advertised under applicable FDA and other laws.

The lawful-use requirement creates an important connection between the two areas.

A trademark attorney should not assume FDA authorization based merely on commercial availability, while a regulatory team should not assume product authorization means the proposed brand name is legally available.

Both questions should be answered before a major launch.

What Are the Biggest Trademark Mistakes Cigar, Tobacco, and Vape Brands Make?

One significant mistake is launching packaging before conducting comprehensive trademark clearance.

Another is assuming that Class 34 means every related accessory is automatically covered.

Companies can also misunderstand the relationship between USPTO registration and FDA regulation, incorrectly believing that a trademark registration authorizes a tobacco product to be sold.

Vape companies may create additional problems by claiming use in commerce when the underlying product does not satisfy applicable federal marketability requirements.

Other businesses fail to separate the house brand from individual product-line names or allow a manufacturer or distributor relationship to develop without clearly establishing trademark ownership.

The best time to resolve these issues is before the brand becomes valuable.

How Should You Trademark a Cigar, Tobacco, or Vape Brand?

The process should begin with the proposed brand rather than the application form.

The company should select a distinctive name and conduct comprehensive clearance for similar federal trademarks and relevant marketplace uses.

Next, it should identify the correct owner and determine exactly which goods will be offered under the mark. Cigars, tobacco, electronic cigarettes, oral vaporizers, and many smokers’ articles generally fall within Class 34 under the current Nice Classification, while accessories, retail services, lounges, clothing, and other offerings may require separate classifications.

The company should then select the proper filing basis.

If qualifying lawful use has already begun, a Section 1(a) application may potentially be appropriate. If the brand is still preparing for launch, a Section 1(b) intent-to-use filing may allow the trademark process to begin without prematurely claiming actual commercial use.

For tobacco and vape products, the company’s regulatory status must also be evaluated. TMEP § 907 requires lawful use to support federal registration, while FDA states that new tobacco products generally require the applicable marketing authorization before lawful U.S. marketing.

After launch, the company should preserve genuine specimens, maintain consistent ownership, monitor competing applications and counterfeit products, and expand its trademark portfolio when the brand moves into meaningful new product or service categories.

A strong tobacco trademark strategy therefore involves more than filing a Class 34 application.

It requires coordination among brand clearance, USPTO registration, lawful commercial use, FDA regulation, manufacturing relationships, packaging, and long-term enforcement.

Cohn Legal, PLLC advises consumer-product businesses and regulated brands on trademark clearance, federal registration, trademark ownership, licensing, portfolio development, TTAB proceedings, and enforcement.

Primary Sources and Authorities

TMEP § 907 and 37 C.F.R. § 2.69 establish the USPTO’s lawful-use principle. When goods are regulated under an Act of Congress, the USPTO may inquire into compliance for the purpose of determining whether the claimed commerce is lawful. Current TMEP guidance confirms that unlawful use cannot serve as the basis for federal trademark registration.

The USPTO currently applies the Nice Classification, Thirteenth Edition, version 2026, effective January 1, 2026. International Class 34 expressly covers tobacco and tobacco substitutes, cigarettes and cigars, electronic cigarettes and oral vaporizers for smokers, smokers’ articles, and matches. It also includes certain accessories and containers such as cigar humidors and lighters for smokers.

USPTO Goods and Services guidance requires applicants to identify their goods and services accurately. Use-based applicants must use the trademark in commerce for all claimed goods, while intent-to-use applicants must possess a bona fide intention to use the trademark for everything identified.

Section 910 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 387j, establishes the premarket-review framework for new tobacco products. FDA currently states that a new tobacco product generally must receive the applicable written marketing authorization before it is legally introduced into the U.S. market, subject to the statutory pathways and exceptions.

FDA currently recognizes three principal pathways for legally marketing qualifying new tobacco products: Premarket Tobacco Product Applications, Substantial Equivalence Reports, and Exemption from Substantial Equivalence Requests where applicable.

FDA also expressly cautions that a tobacco marketing authorization should not be characterized as the product being “FDA approved.” Marketing authorization and federal trademark registration each serve different legal purposes.

Author: Abraham Cohn, U.S. trademark attorney and founder of Cohn Legal, PLLC. Cohn Legal advises consumer-product companies, manufacturers, distributors, startups, and regulated brands on trademark clearance, federal registration, brand ownership, licensing, portfolio development, TTAB proceedings, infringement, and enforcement.