## Facts

- An applicant sought Principal Register registration of “#MAGICNUMBER108” for apparel items, including T-shirts.
- The designation referenced the Chicago Cubs’ 2016 World Series win after a 108-year championship drought.
- The examining attorney introduced evidence of extensive third-party use of “#MAGICNUMBER108” (and similar wording) in social media and news coverage as a celebratory or informational message about the Cubs.
- Some media items mentioned the applicant as an early person associated with the phrase, but the record did not show the designation used by consumers as a brand identifying a single source of apparel.
- The USPTO refused registration under Lanham Act §§ 1, 2, and 45 on the ground that the designation failed to function as a trademark; the applicant appealed to the TTAB.

## Issues

1. Whether “#MAGICNUMBER108,” as used on apparel, would be perceived by relevant consumers as identifying and distinguishing a single source of goods.
2. Whether widespread public and media use of the designation as a celebratory/informational slogan shows the designation fails to function as a trademark under Lanham Act §§ 1, 2, and 45.

## Decision

- The TTAB affirmed the refusal to register “#MAGICNUMBER108” on the Principal Register for apparel.
- The Board found the designation would be perceived primarily as an informational or celebratory message about the Cubs’ 2016 championship and 108-year drought, not as a source indicator.
- The Board held the applicant’s asserted role in originating or popularizing the phrase did not establish trademark function where marketplace evidence showed diffuse, non-source-specific use.
- The Board concluded that placing the phrase on clothing would be understood as ornamental/message use rather than trademark use.

## Legal Principles

- Registrability requires that matter function as a trademark: it must identify and distinguish the applicant’s goods and indicate source in the minds of relevant consumers. (Lanham Act § 45)
- The controlling inquiry in a failure-to-function refusal is consumer perception shown by specimens and other marketplace evidence, not the applicant’s intent or claimed authorship of the wording.
- Commonplace, widely used informational expressions and slogans used by the public are often perceived as messages rather than source identifiers and may be refused registration.
- Hashtags are not automatically unregistrable, but a hashtag expression is refused when consumers perceive it as a content-tagging or informational phrase rather than a mark.

## Conclusion

The TTAB held that “#MAGICNUMBER108” could not be registered for apparel because extensive third-party social-media and media use showed consumers would understand the designation as a Cubs-related informational slogan, not as a trademark identifying a single commercial source.


In re DePorter, 129 U.S.P.Q.2d 1298 (T.T.A.B. 2019)