A hash symbol (#) or the word “hashtag” generally adds little or no source-indicating distinctiveness to a trademark. This is the ruling by the Trademark Trial & Appeal Board (TTAB) in the August 16, 2018 precedential opinion In re i.am.symbollic, llc (serial number 85916778).
In this appeal, the well-known musician Will.I.Am from the Black Eyed Peas filed an application for #WILLPOWER in standard characters for clothing items. The examiner rejected this application under Section 2(d) for likelihood of confusion with an existing registration for use with clothing items in the same international class. The existing registration included the words WILLPOWER WEAR and Have the will…, and a stylized drawing of mountains.
Having determined that the goods to be sold were identical between the application in question and the registration, the USPTO also concluded that the goods would also be sold in the same channels of trade and bought by the same classes of purchasers. As a result, the analysis turned on the similarity of the marks.
The TTAB agreed with the examiner in stating that the shared term WILLPOWER stands out as the most dominant element of the Applicant’s mark, conveying a stronger commercial impression than the # symbol. And, the design of stylized mountains in the registration does not overwhelm, detract from, or change the commercial impression of, the wording WILLPOWER WEAR and HAVE THE WILL. The USPTO considered the word WILLPOWER in the registration to be the predominant aspect of the mark, with WEAR being a descriptive term and HAVE THE WILL to merely reinforce the meaning of WILLPOWER.
The USPTO then cited TMEP § 1208.18 to explain the impact, or lack thereof, of a # character to a word. They explained that the hash symbol does not have source-indicating distinctiveness and at most simply appears as the social media tool to create a metadata tag. Accordingly, the TTAB rejected the appeal.