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is the founder and chair of the Intellectual Property Department at Cole Schotz P.C. David litigates and counsels in the areas of trademarks, copyrights, patents, unfair competition, defamation, and privacy rights, with special focus on the protection, use and misuse of intellectual property rights in the digital age. David has authored numerous articles and lectures frequently in the fields of intellectual property law and disputes, and Internet and computer law.
Can a hashtag be a protectable trademark? And when does use of another’s trademark in hashtags constitute infringement? Disagreement has arisen among the United States Patent and Trademark Office (“PTO”), the courts, and commentators about whether hashtags can be protected at all. A trademark, of course, is a source-identifier – a “word, name, symbol, or device, or any combination thereof” used “to identify and distinguish … goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods.” 15 U.S.C. § 1127(a).