61 Pages Posted: 14 Jul 2015 Last revised: 5 Mar 2016
Date Written: July 13, 2015
From Kentucky Fried Chicken’s #HowDoYouKFC campaign to viral fundraiser #IceBucketChallenge to Instagram phenomenon #TBT, hashtags as trademarks — I call them “tagmarks” — are having a moment. Given the resources that brands invest in marketing via social media, and specifically in choosing and using hashtags, it’s not surprising that some players have begun to seek federal trademark registration for those hashtags. By the end of 2015, companies had successfully registered two hundred tagmarks and sought protection for over a thousand others; the US Trademark Office granted more tagmark registrations in that year than it did in every previous year combined. But can a hashtag really be a trademark? This Article argues that because consumers are primed to perceive a hashtag primarily as a tool for search, organization, or self-expression on social media, any trademark meaning that might attach to a hashtag is necessarily a secondary meaning. As such, even tagmarks comprising suggestive or arbitrary terms will not inherently serve as source indicators and should only be granted protection upon a showing of secondary meaning.
Note: This paper is a work in progress; draft on file with author.
Keywords: trademarks; intellectual property; social media; Internet; hashtags; USPTO; registration
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