Hashtag Found Not to Be Registrable

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From The National Law Review:

The Trademark Trial and Appeal Board (“TTAB”) recently issued a precedential decision about the use of hashtag trademarks in In re: DePorter, Serial No. 87/229,711 (TTAB Jan. 29, 2019). Many companies use hashtags in their marketing, and this decision highlights practical considerations about protecting and seeking registration for such trademarks.

In this case, the applicant sought to register #MAGICNUMBER108 for various apparel items in Class 25. Chicago Cubs fans used the #MAGICNUMBER108 hashtag frequently in social media posts during and after the Cubs’ successful 2016 World Series campaign – the club’s first World Series title in 108 years. The Examining Attorney and the TTAB refused registration on the ground that #MAGICNUMBER108 is mere informational matter that fails to function as a trademark to indicate the source of the applicant’s goods and identify them from the goods of others. The TTAB emphasized that “[t]o be a mark, the phrase must be used in a manner which indicates to purchasers or potential purchasers a single source or origin for the goods.”

. . . .

Examining Attorney showed wide use of #MAGICNUMBER108 in a non-trademark manner to convey information about the Chicago Cubs’ World Series appearance and win after a 108-year drought. The TTAB found that this evidence suggested that “upon encountering Applicant’s ‘mark,’ prospective purchasers familiar with such widespread non-trademark use are unlikely to consider it to indicate the source of Applicant’s goods.”

. . . .

The more commonly a term or expression is used by the public, the less likely the expression will be identified with a single source.

. . . .

Mere intent that a hashtag function as a trademark, or the mere fact that such trademark appears on the applied-for goods is not enough in and of itself to make it a trademark. Rather, a hashtag trademark must be used in a manner which indicates to purchasers or potential purchasers a single source or origin for the applied-for goods.

. . . .

The addition of the term “hashtag” or the hash symbol (#) to an otherwise unregistrable term typically will not render the resulting composite term registrable. For example, if a trademark consists of the term HASHTAG or 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. #SKATER for skateboarding equipment is merely descriptive).

Link to the rest at The National Law Review

For the record, PG is a longtime (formerly longsuffering) Chicago Cubs fan who cheered lustily when the Cubs finally won the World Series.

2 thoughts on “Hashtag Found Not to Be Registrable”

  1. From my read of this summary, it looks like someone decided to trademark an existing hashtag.

    That would be about as low as copyrighting the word “Hamburger”, and then sending cease and desist letters to all the established burger places, so only you could advertise selling hamburgers.

    Or, for a more literary example, Faleena Hopkins.

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