Trademark >> Courts And USPTO Analyze Hashtags, With Varying Results

In the social media world, hashtags are ubiquitously used by the general public, marketers and their agencies. But the legal protectability of hashtags as intellectual property has largely gone unaddressed. This began to change in 2015, with courts and government entities analyzing the interplay between hashtags and trademark law, with mixed results.

A court in California held that hashtags did not function as trademarks. The case involved a dispute between two competing manufacturers of electronic vaporizers. The parties had entered into a settlement agreement that prohibited one of the manufacturers from using the term "CLOUD PEN" as a unitary trademark. One manufacturer alleged that the other had violated the settlement by using the hashtag #cloudpen in Instagram posts and in connection with promotional contests encouraging consumers to use the hashtag #cloudpen. The court held that, because the hashtag was merely a functional tool used to direct consumers to the