BitLaw

1202.18    Hashtag Marks

A "hashtag" is a form of metadata consisting of a word or phrase prefixed with the symbol "#" (e.g., #chicago, #sewing, and #supremecourtdecisions). Hashtags are often used on social-networking sites to identify or facilitate a search for a keyword or topic of interest. See Dictionary.com, search of "hashtag," https://www.dictionary.com/browse/hashtag (accessed May 27, 2021) (citing Random House Unabridged Dictionary as its proprietary source).

A mark consisting of or containing the hash symbol (#) or the term HASHTAG is registrable as a trademark or service mark only if it functions as an identifier of the source of the applicant’s goods or services. See TMEP §1202 regarding the determination of whether a mark functions as a mark.

When examining a proposed mark containing the hash symbol, careful consideration should be given to the overall context of the mark, the placement of the hash symbol in the mark, the identified goods and services, and the specimen of use, if available. If the hash symbol immediately precedes numbers in a mark (#29 JONES, THE #1 APP, # TWELVE, etc.), or is used merely as the pound or number symbol in a mark (e.g., ICHIBAN#), such marks should not necessarily be construed as hashtag marks. This determination should be made on a case-by-case basis.

Generally, the hash symbol and the wording HASHTAG do not provide any source-indicating function because they merely facilitate categorization and searching within online social media (i.e., social-media participants are directed to search a particular subject by typing, e.g., "hashtag ABC," where ABC is the subject). See In re DePorter, 129 USPQ2d 1298, 1303 (TTAB 2019); In re i.am.symbolic, llc, 127 USPQ2d 1627, 1633 (TTAB 2018).

Therefore, the addition of the term HASHTAG or the hash symbol (#) to an otherwise unregistrable mark typically will not render it registrable. Cf. TMEP §807.14(c) ("Punctuation, such as quotation marks, hyphens, periods, commas, and exclamation marks, generally does not significantly alter the commercial impression of the mark."); TMEP §1209.03(m) (addition of generic top-level domain name to otherwise unregistrable matter typically cannot render it registrable). Accordingly, if a proposed mark consists of the hash symbol or the term HASHTAG combined with wording that is merely descriptive or generic for the goods or services, or fails to function as a trademark because it is merely informational matter, then the entire mark must be refused.

Example:

#SKATER for skateboards is merely descriptive