Hashtags Have No Trademark Significance
In a recent precedential case of the Trademark Trial and Appeal Board, (the "Board" or "TTAB") it was confirmed that hashtag symbols have no trademark significance. In this case, In re i. am.symbollic, llc, 127 USPQ2d 1627 (TTAB 2018) [precedential], the founder of the applicant is the front man for the Black Eyed Peas, who is known by his stage name Will.i.am. and he has a music album entitled #willpower. The applicant seeks to register #WILLPOWER in standard characters for different clothing items, footwear and belts in international class 25. The trademark examiner refused the application based on the cited mark WILLPOWER WEAR HAVE THE WILL & Design, http://ttabvue.uspto.gov/ttabvue/ttabvue-85916778-EXA-79.pdf (use this link to review the case and to examine the design mark cited by the Examining Attorney) for hats, jackets, pants, shirts, shoes in international class 25. After the refusal, applicant appealed to the Board.
The Board compared the similarities of the marks. The marks share the term WILLPOWER. The Board stated that the term WILLPOWER was the dominant element of both parties' marks. It is identical in sound and meaning in both marks. The commercial impression of both marks is the ability to control oneself and to possess a strong determination. The hashtag symbol used by applicant will not provide any distinction or unique meaning to the mark. The hashtag symbol does not change this meaning in any way, it may just simply emphasize the commercial impression of strong will. The hashtag symbol will not obviate the similarities between the marks.
A hashtag is a word or phrase that starts with the # symbol and it indicates what a message is about. It's used on social media and on blogs to make it easier for the user with a specific theme or subject matter to search or find content categorized by a particular topic. An applicant adding the # symbol to its mark cannot distinguish its mark in this manner. The Trademark Manual of Examining Procedure §1202.18 discusses hashtags. This section of the Manual states that the # symbol and the wording HASHTAG does not provide any source indicating function. Using a hashtag symbol in the mark or using the word HASHTAG in a mark is very similar to those marks that add a generic top-level domain to an otherwise unregistrable mark, it will not allow such a mark to be registered. For example, if a mark is considered to be merely descriptive or generic for the goods or services, adding a # symbol will not alter the descriptive or generic meaning, and the entire mark will be refused as merely descriptive or generic. Therefore, you can add a # symbol to your mark, but this will not alter either the overall commercial impression enough to avoid a conflict or a 2(d) refusal, nor will it change the meaning of a mark considered merely descriptive or generic.
Another issue to consider is that if you use a mark with a # symbol in a descriptive manner you could be weakening the strength of the mark. In addition, a third party could see your descriptive use and this may prompt a challenge. A third party could file a Petition to Cancel at the TTAB alleging the mark is merely descriptive and not entitled to registration on the Principal Register if the mark is less than five years old, measured from the date of registration. You may also be risking uses of the mark by others, and this will undermine the trademark's ability to function as a source identifier. If you use a # symbol with a trademark, keep in mind the same rules apply that would with any trademark use. Continue to use a ™ symbol while the application is pending and once the mark registers then use the ® symbol with the mark. For now, assume adding a # symbol to your mark does not change the commercial impression of the mark or allow a mark that could not register before move forward to registration. If you have any additional questions about # symbols and trademarks, please contact the firm for a courtesy consultation.