Can Hashtags Be Trademarked?

The USPTO has determined that a hashtag may be registerable, but only if it functions as an identifier of the source of the applicant’s goods or services, and the applicant must provide evidence that the hashtag was actually used in commerce. Some infringement cases have already been tried, including one case in which a federal district court found that a former employee using hashtags meant to promote his former employer were misleading to consumers. What remains unclear is “how trademark law will treat hashtags used for non-competitive goods and services,” write Morrison Foerster lawyers Dina Roumiantseva and Aaron Rubin.