Scrolling through my personal Facebook feed recently, I came across a post expressing deep concern over “all the 5-4 rulings” potentially diminishing the stature of the Supreme Court. There is no denying that some 5-4 decisions generate a lot of publicity, particularly when those decisions involve hot-button issues like abortion and other so-called social issues.

Just this week, the Supreme Court delivered three 5-4 decisions that, for some, may validate that concern. In June Medical Services v. Russo, the Court ruled that a Louisiana law requiring doctors performing abortions to have admitting privileges at nearby hospitals violated the Constitution, with Chief Justice John Roberts joining the Court’s “liberal minority.” In Espinoza v. Montana Department of Revenue, the Court ruled that states cannot ban public funding of scholarships for religious schools when those benefits are available to other schools, with Chief Justice Roberts writing the opinion for the “conservative majority.” And in Seila Law v. Consumer Financial Protection Bureau, the Court ruled that the structure of the Consumer Financial Protection Bureau violated the separation of powers, and held that the Court could strike out the unconstitutional part of the agency’s structure without eliminating the agency. Again, Chief Justice Roberts wrote the opinion for the majority.

But how prevalent, really, are these 5-4 decisions? According to, of the 54 cases decided by the Court so far in the 2019-2020 term, just nine were decided in 5-4 splits, while 16 cases were unanimous, and another 12 had eight of the nine Justices in agreement. A little math shows that the 5-4 decisions represent just around 17% of the decisions this term, while unanimous or nearly unanimous decisions represent around 52%, with the remaining cases decided by a clear majority (one other than a 5-4 split.) If we include decisions issued per curiam (decisions issued by the Court that are generally non-controversial and often unanimous), the cohesion of the Court is even more pronounced.

This admittedly rudimentary analysis doesn’t distinguish between cases that affirm a lower court decision, reverse one, or vacate and remand the case back to the lower courts, and doesn’t analyze the rate of 5-4 splits in prior Supreme Court terms. But it does show that the Court is not necessarily as divided as it may appear based on media reports of decisions on hot button issues.  But remember, not all cases heard by the Supreme Court involve those issues. Sometimes it’s an interesting (for me) trademark case, like United States Patent and Trademark Office v., also issued this week, wherein the Court voted 8-1 that adding “.com” to a generic word (like “booking” in the travel industry) can make the entire combination eligible for trademark protection. (For anyone not versed in the vagaries of U.S. trademark law, trademark protection is generally not available for generic terms.) Sure, there were media reports about this case, but trademark issues tend not to stoke people’s passions the way some social issues do.

More decisions will be issued in the coming days. We’ll see if they resemble the 5-4 splits we’ve seen this week, or the more prevalent unanimous and near-unanimous decisions of the rest of the 2019-2020 Term.

This question came up when a client with an existing registered trademark, a word mark, discovered someone was using that trademark on Twitter with a hashtag to promote a completely unrelated product on the other side of the world.  “Don’t I own that trademark?” the client asked. Good question. Yes, she owned the trademark for the word in the U.S., having registered the mark on the principal register of the U.S. Patent & Trademark Office (USPTO) a few years prior. But could she claim ownership of the word preceded by the hashtag? Not likely.

A mark consisting of or containing the hashtag symbol (#) or the word “HASHTAG” can be registered as a trademark only if it serves to identify the source of the applicant’s goods or services. Merely using the trademark with the hashtag on social media to promote awareness of the goods or services is not enough. Applying for registration of a trademark that includes a hashtag may prompt the USPTO to respond with an advisory like this one:

“Applicant is advised that … registration may be refused on the ground that the applied-for mark …. is used merely as a hashtag for online social media, and as such does not function as a trademark or service mark to indicate the source of applicant’s goods and/or services and to identify and distinguish them from others.…..  Hashtags are used on social-networking sites to identify or search for a keyword or topic of interest.  An applied-for mark that includes the hash symbol (#) or term “hashtag” is registrable only if it also serves as a source indicator for the identified goods and/or services.”(Italics added.)

If you want to register your trademark with the hashtag, be prepared to demonstrate that you are actively using the #trademark on your goods (or its packaging), or closely identifying the #trademark with your services, for example on your website and other marketing materials.

As for the client, while she had used the mark on social media preceded by the hashtag, she was not using the mark with the hashtag on her goods. And the Twitter user? They were using the hashtag the same way, i.e., as an online social media tool, not as a source identifier. Neither one gets #TrademarkProtection.

After years of having a pretty much static and not especially imaginative online presence, we are finally launching our new website! We hope you will be patient as this project evolves. After all, we are lawyers, not internet gurus. We are here primarily to provide you with information about our law firm, as well as what we hope will be interesting reading about what may sometimes seem like the mysterious world of “the Law”. If there is anything you’d like to see more (or less) of, feel free to contact us using our Contact form. And please remember, any information provided here is for general knowledge only and is in no way intended to provide legal advice on your particular set of circumstances. Every situation is different, and the facts of your legal issue will be what determines the appropriate legal advice.