1202.18 Hashtag Marks
The addition of the term HASHTAG or the hash symbol (#) to an otherwise unregistrable mark typically cannot render it registrable. Cf. TMEP §1209.03(m) and §§1215-1215.10 regarding generic top-level domain names. A “hashtag” is a form of metadata comprised of a word or phrase prefixed with the symbol “#” (e.g., #chicago, #sewing, and #supremecourtdecisions). Hashtags are often used in social-networking sites to identify or facilitate a search for a keyword or topic of interest. See Dictionary.com, search of “hashtag,” http://dictionary.reference.com/browse/hashtag (June 19, 2013) (citing Random House Dictionary). When considering 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.
A mark comprising or including 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. 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). Cf. In re Hotels.com, L.P., 573 F.3d 1300, 1301, 1304, 91 USPQ2d 1532, 1533, 1535 (Fed. Cir. 2009) (finding that the addition of a generic top-level-domain to an otherwise unregistrable mark does not typically add any source-identifying significance); Interactive Prods. Corp. v. a2z Mobile Office Solutions, Inc., 326 F.3d 687, 691, 66 USPQ2d 1321, 1327-28 (6th Cir. 2003) (finding that the post-domain path of a URL does not typically signify source); TMEP §§1209.03(m), 1215.01. Thus, if a mark consists of the hash symbol or the term HASHTAG combined with wording that is merely descriptive or generic for the goods or services, the entire mark must be refused as merely descriptive or generic.
#SKATER for skateboarding equipment is merely descriptive
A mark may be registrable with a disclaimer of the wording HASHTAG or the hash symbol in cases where they are separable from other registrable matter. Therefore, if a mark consists of the hash symbol or the term HASHTAG combined with wording that is distinctive for the goods or services, the hash symbol or the term HASHTAG should be disclaimed.
# INGENUITY for business consultation services is registrable with a disclaimer of the hash symbol
Cf. TMEP §1215.07 for further information and analogous examples.
Note that when a mark containing the hash symbol or the term HASHTAG is unitary with other arbitrary or suggestive wording in the mark, (e.g., #SLUGGERTIME for clothing, #DADCHAT for counseling services, and HASHTAGWALKING for entertainment services), no descriptive or generic refusal or disclaimer is required. However, such marks must still be evaluated to ensure that they function as source indicators for the goods or services. If the specimen shows the hash symbol or the term HASHTAG in a proposed mark as merely a tag used to reference or organize keywords or topics of information to facilitate searching a topic, the relevant public will not view the hash symbol or the term HASHTAG in the mark as identifying the source of the goods or services. In such cases, registration must be refused under Trademark Act Sections 1, 2, and 45, 15 U.S.C. §§1051, 1052, 1127, for goods, and Trademark Act Sections 1, 2, 3, and 45, 15 U.S.C. §§1051-1053, 1127, for services. Cf. In re Roberts, 87 USPQ2d 1474 (TTAB 2008); In re Eilberg, 49 USPQ2d 1955 (TTAB 1998); TMEP §1215.02(a).
For example, if the proposed mark #SEWFUN for instruction in the field of sewing appears on a specimen comprising a screenshot of a social networking site used merely to organize users’ comments about sewing classes applicant offers, the mark must be refused registration for failure to function as a service mark.
In unique cases, marks that consist solely of variants of the term HASHTAG or the hash symbol may function as a mark and should not be refused as descriptive or generic, nor should a disclaimer be required, especially if the mark will be used in connection with goods or services that do not relate to social networking. In such cases, the symbol and term HASHTAG do not create the commercial impression of being a metadata tag since they do not immediately precede other wording, and may be considered suggestive or arbitrary, depending on the associated goods and services (e.g., HASHTAG for use in connection with liquor or THE HASHTAG for providing office facilities). However, depending on the underlying goods or services, such marks may still be descriptive or generic (e.g., the mark HASHTAGS used in connection with “providing application service provider services in the field of social media information management”).