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.
#SKATER for skateboards is merely descriptive
1202.18(a) Disclaiming HASHTAG or Hash Symbol
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
TMARKEY #SKATER for skateboards is registrable with a disclaimer of "# SKATER"
Cf. TMEP §1215.07 for further information and analogous examples.
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 t-shirts, #DADCHAT for emotional counseling for families, and HASHTAGWALKING for live music concerts), no descriptive or generic refusal or disclaimer is required. However, such marks must still be evaluated to confirm 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 trademarks, and Trademark Act Sections 1, 2, 3, and 45, 15 U.S.C §1051 -1053, 1127, for service marks. 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.
1202.18(b) Marks Consisting Solely of HASHTAG or Hash Symbol
Sometimes, marks that consist solely of variants of the term HASHTAG or the hash symbol may function as a mark, such as when the mark will be used in connection with goods or services that do not relate to social networking. In these cases, the symbol and term HASHTAG may 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 rental of office space).