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Trademarking Hashtags

A recent Trademark Trial and Appeal Board decision in In re DePorter found that a particular hashtag was not eligible for trademark protection. The TTAB noted that a hashtag “is a word or phrase preceded by a hash mark (#), used within a message to identify a keyword or topic of interest and facilitate a search for it.”  To be eligible for trademark protection, a word, design or phrase “must be used in a manner which indicates to purchasers or potential purchasers a single source or origin for the goods.” In re: DePorter, p. 3.

The key takeaways, expressed further in this article, are that to seek protection for a hashtag trademark in connection with goods and/or services, you should choose a distinct word or phrase that relates to the applied-for goods and services; and use the hashtag trademark on point of sale signs, packaging, displays, advertisements, brochures and/or websites in a prominent manner to promote the applied-for goods and/or services; and choose an arbitrary and capricious mark.  If a trademark consists of the hashtag symbol followed by wording that is “merely descriptive” or “generic” for the goods or services, the entire trademark must be refused as merely descriptive or generic (i.e. #SKIER for skis is merely descriptive).  Given that the purpose of a hashtag is for it to be used by as many consumers as possible to develop online conversations, hashtag trademarks may present challenges in enforcing and policing third-party uses of such trademarks. As a result, if you intend to leverage the reach of a hashtag trademark by seeking registration with the USPTO, you should consider the impact that these online conversations may have on the registrability of the hashtag. 

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