#CanHashtagsBeTrademarked: Trademark Law and the Development of Hashtags

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Volume 17, Online Edition (Jan 2016)

Within the past several years, hashtags have become one of the most popular means of organizing content on social media. The experimental categorical tool is rampant in our society because it allows consumers to connect with and engage other social media users based on a common interest, theme, or topic. Brands started using trademarks in hashtags and even trademarking hashtags themselves to encourage users to talk about their products. Incidentally, these hashtags were used by competitors, which has lead to hashtag trademark infringement claims. The United States Patent and Trademark Office recognizes a hashtag can serve as, and be registered as, a trademark. However, a federal district court in Eksouzian v. Albanese determined a hashtag is not a trademark. This Recent Development argues that because of the inherent nature of social media and the way consumers understand how it operates, hashtags should not be afforded legal trademark protection.

Elizabeth A. Falconer, #CanHashtagsBeTrademarked: Trademark Law and the Development of Hashtags, 17 N.C.J.L. & Tech. On. 1 (2016), available at http://ncjolt.org/wp-content/uploads/2016/01/Falconer_Final.pdf.

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