By Samantha Markley

In today’s world, social media platforms are a primary means of brand promotion for all types of businesses, whether they are start-ups or well-

Samantha Markley IP Attorney Loza and Loza LLP

known players. And of course, a huge part of social media is the hashtag, allowing users to link content to a specific topic, issue, company, etc. Hashtags are a valuable asset providing the ability to draw users to relevant content, insert a company into a trending topic, or the like. One way to try and harness the power of a hashtag is to seek trademark registration.

When it comes to trademark registration for hashtags, the key question is whether the hashtag functions as a source identifier. In other words, is the hashtag used to identify a brand?

If the hashtag just identifies a topic, with no link to one particular company or type of products, then trademark protection is unlikely. On the other hand, if the hashtag is associated with a specific brand or a particular good or service, then it probably does function as a trademark and is eligible for registration.

Some examples of hashtags that would likely function as trademarks are brands themselves: #starbucks, #youtube, or #nordstrom. Other examples might be slogans for popular brands: #justdoit, #tastetherainbow, or #imlovinit.

Hashtags that would not function as trademarks are those relating to certain topics, not associated with any goods or services. So for example, travel destinations: #hawaii, #london, or #borabora. These hashtags would probably be searched by users to find information relevant to these destinations, such as sight-seeing stops or popular restaurants. When encountering these hashtags, users would probably not link them to a brand or product.

Things get a bit stickier when we move into the area of hashtags that may associate with some products, particularly when those associations are tangential at best. What about #metoo or #blacklivesmatter? When we see these hashtags, most of us immediately think of the social movements to end sexual harassment and racial violence, respectively. At the same time though, some have tried to perpetuate the ideals behind these terms by creating products connected with them (like shirts or hats), while some are just trying to capitalize on the name recognition of these movements to promote their own products, related or not. So, where do we draw the line?

The TTAB recently addressed the registrability of the hashtag #MAGICNUMBER108. For all of you non-Cubbies out there, the hashtag #MAGICNUMBER108 was used on social media to show support for the Chicago Cubs during the 2016 World Series, and references the team’s 108-year drought.

In a precedential opinion, the Trademark Trial and Appeal Board (“TTAB”) found that the term #MAGICNUMBER108 does not function as a trademark for shirts, and instead conveys an informational message referring to the Chicago Cubs winning the 2016 World Series.[1] Despite the fact that applicant was the first to use the term and may even be the world’s leading expert in Cubs numerology, his use of the hashtag #MAGICNUMBER108 on shirts did not function as a source identifier.[2]

The USPTO submitted evidence establishing widespread use of the proposed mark to convey information about the Chicago Cubs’ World Series appearance and win after a 108-year drought, as opposed to trademark use identifying the source of goods or services.[3]

According to the TTAB, in the context of social media, a hashtag is defined as 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.[4] The Board stated that when used as part of an online social media search term, hashtags generally do not serve a source-identifying purpose.[5] Rather, they “merely facilitate categorization and searching within online social media.”[6] As such, the addition of the term HASHTAG or the hash symbol (#) to an otherwise unregistrable term typically will not render the resulting composite term registrable.[7]

The Board concluded that due to the widespread use of #MAGICNUMBER108 to express affiliation for the Chicago Cubs baseball team and their pursuit of a 2016 World Series win 108 years after their last one, the proposed mark would not be perceived as identifying a particular source of goods. As such, the TTAB affirmed the refusal to register the mark #MAGICNUMBER108 for shirts.[8]

So what does this all mean? As highlighted by the #MAGICNUMBER108 decision, the threshold question when considering whether to file a trademark application for a hashtag is whether the hashtag is a source identifier for goods or services, or whether it merely describes a particular topic, movement, or idea. If you have a hashtag that falls into the former category, then you should consult a trademark attorney and consider filing a trademark application. Companies should also think twice before turning a company name, product line, or slogan into a more general and widely used hashtag as that may diminish the potential that it serves a source identifier specific to the company, versus a publicly used, less protectable term or phrase. You should consult your trademark attorney to discuss your social media marketing strategy, particularly if your business routinely utilizes hashtags.

[1] See In re DePorter, Serial No. 87229711 (January 29, 2019) [precedential] (Opinion by Judge Linda A. Kuczma) (“DePorter).

[2] See id.

[3] See DePorter.

[4] See Id.

[5] See id.

[6] TMEP Section 1202.18

[7] See id.

[8] See DePorter.

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