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," http://dictionary.reference.com/browse/hashtag (June 19, 2013) (citing Random House Dictionary).
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). 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).
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 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