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In August of 2018, the U.S. Trademark Trial and Appeal Board (TTAB), which decides cases certain trademark cases, refused rapper will.i.am’s attempt to register a hashtag as a trademark. Specifically, i.am.symbolic,llc (will.i.am’s company), attempted to register #WILLPOWER for a variety of apparel goods. The Trademark Examining Attorney refused his application because WILLPOWER WEAR  was already registered for “Hats; Jackets; Pants; Shirts; Shoes,” and i.am.symbolic appealed the decision to the TTAB.

On September 7, 2017, the U.S. Federal Trade Commission (FTC) announced that it had entered into a proposed consent agreement with two individuals and their company that allegedly ran an online gaming community website that allowed users to gamble virtual currency.  According to the FTC complaint, the two individuals promoted the gaming site and not only failed to disclose their ownership interest in the site or that they were playing with company money, but they also paid other social media influencers between $2,500 and $55,000 to promote the site.

As we had previously written, in the Spring of 2017, the FTC issued 90 letters to social media influencers and the companies they may have endorsed on Instagram.  The letters reminded the recipients that the FTC expects any “material connection” between an influencer and the provider/service/company to be conspicuously disclosed.  A “material connection” is a “a connection that might affect the weight or credibility that consumers give the endorsement,” which can be a direct payment, free products, an ownership interested in the company, or even a family connection to the company.  As part of the FTC’s September 7 announcement, the FTC also stated that it sent warning letters to 21 social media influencers who had received the Spring letters.  (The FTC did not disclose the names of the influencers or companies that received the warning letters.)  Consequently, the FTC may be bringing additional actions in this area.

#Yes! In the United States, a hashtag can be trademarked if it serves a source-identifying function for the trademark owner’s goods or services.

Hashtags, which started on Twitter as a way for users to follow conversations on particular topics, are words or phrases that follow the pound or hash sign (“#”). Since their inception, hashtags have become a popular way for Internet users to indicate that a post or other piece of content is related to a specific thing – a specific issue, a topic in the news, an event, or even a company or product.