In Align Technology, Inc., the defendant claimed nominative fair use as a defense, but the court determined that such use did not constitute fair use. Defendant's use of the plaintiff's mark as a hashtag, instead created an association with the plaintiff's products. The court further held that the defendant's use was not reasonably necessary to identify its product. April, 12, 2019), where the court held that the defendant's use of hashtags did not qualify for protection. See also, a recent California case, Align Technology, Inc. Mucha Lucha Liebre Taco Shop 1 LLC, 16 CV-04538 (D. The courts make a distinction when a third party uses another's trademark as a hashtag to promote their own goods and services, and when its used for other purposes such as referring to the other party's goods or services. sophisticated purchasing, strength of the mark, both conceptual and commercial strength, evidence of marketplace confusion, and any evidence that the defendant adopted the mark in bad faith. Most jurisdictions focus on the similarities and dissimilarities of the marks, the relatedness of the goods and services, the similarities of trade channels, conditions under which sales are made, impulse vs. Even though different courts and jurisdictions vary on the test for "likelihood of confusion" many of the factors are the same. ![]() For example, courts look to determine if the nature of the use is likely to cause confusion, likely to deceive or cause mistake, see 15 USC ยง1114. ![]() The courts seem to be focusing on the specific facts of each case, rather than relying on general rules for making determinations. To learn more about the basics of trademarks and hashtags, see our firm page entitled, Hashtags Have No Trademark Significance. Those cases that have addressed this issue are not necessarily consistent in results, but more or less consistent with the approach, and how to analyze these matters. There are few cases that have ruled on this issue. It is risky business to use another party's trademark as a hashtag. This area of the law is continuing to evolve.
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