#Mark – Is a Hashtag a Use in Commerce?

What are Trademarks and Why Do We Have Them? Trademarks designate the source of goods in commerce and servicemarks designate the source of services in commerce.  An example of a trademark is the polo player on polo shirts. An example of a service mark is the McDonald’s M. However, just about anything can serve as a source designator and be a trademark. The Supreme Court held that even a color can be a trademark. In America, trademark law has evolved to prevent consumer confusion. The Lanham Act governs trademark law in the United States. Trademark suits can be brought in either federal or state court. Importantly, for a Lanham Act suit to be successful, the purported infringer must use the mark “in commerce.” What Are Hashtags and Can They Be Trademarks? Hashtags are additions to social media posts that contain meta-data. For example, a couple may create a hashtag for their wedding. This allows people using social network websites, like Twitter, to easily upload and find posts and photos about the wedding. One interesting question is whether hashtags can be trademarks. The official position of the USPTO, the agency that keeps the registry of trademarks, is that hashtags can be trademarks. Given the wide variety of things that can become hashtags, there is good reason to believe that hashtags can serve as trademarks. Many companies are turning to hashtags to advertise. In 2013, over half of the Super Bowl advertisements featured hashtags. Hashtags are dynamic ways to interact with customers. There are many current ad campaigns that ask consumers to upload positive stories about a good or service and...