Hashtags are trending, and not just on social media. By 2016,
producers had federally registered hundreds of hashtags as
trademarks and asserted exclusive rights in thousands of others. But
by failing to pay close attention to context and consumer perception,
the USPTO may have overlooked issues that render many hashtag
trademarks ("tagmarks") unregistrable. This Article provides a
history and taxonomy of hashtags and explores the protectability
problems that plague tagmarks. Rather than sweeping generalizations
about their status, tagmarks require nuanced analysis that takes into
account their use, distinctiveness, and history in order to more
accurately determine whether and when they merit protection as
marks. To strike a better balance among the competing trademark
concerns of consumer protection, producer reward, and speech, the
USPTO should revise its examining procedures to mandate that every
tagmark be categorized as "primarily merely a hashtag" until an
applicant can establish that its mark actually functions as a source-
indicator.
