It may go without saying, but #hashtags are a vital part of attracting the right eyes to your social media marketing efforts. However, what happens when your #hashtag becomes associated with your particular brand of goods or services? Is it now a trademark? Can (and should) you obtain federal trademark protection for your mark? This post explores whether, when, and how to trademark a hashtag.
What is a hashtag?
Just in case you are not one of the 2.5 billion users of social media[1], a hashtag is a word or phrase preceded by a hash mark (#). Hashtags categorize social media posts (think Twitter, Facebook, or Instagram) by topic and make searching for them easier.[2] Some of the most popular tags as of this writing are #hashtag, #love, and #fitness.[3]
Searching a hashtagged term generates a list of all social media posts tagged with it. So hashtags are beneficial for calling attention to a brand or message. For example, TV shows, celebrities, companies, and social movements use hashtags to gather posts together under one topic. Social media users can use tags to find and comment on posts on the same topic. Users can also use tags to promote a message or brand.
Why would you register a trademark containing a hashtag?
Using a trademark containing a hashtag allows one to promote a business or a product (i.e., brand) to consumers in a creative way through social media. It also protects against others trying to register and use the same hashtag for similar goods or services. Since social media has become consumers’ primary source for information, hashtags have become increasingly used and valuable commodities. Businesses often use hashtags as a way for their customers to express their experience with their company or product, hold contests, or connect with brands through influencers and other growing marketing channels.
Can you register a #hashtag?
In short, #sure you can! A quick look at the USPTO’s website reveals innumerable pending and granted registrations for marks containing either the “#” symbol or word hashtag. A few examples include:
- #REACHFORPEACH for alcoholic beverages excluding beer.
- #joydelivered for organic and natural food delivery services.
- #LETS RIDE for athletic apparel.
Trademark registration process
Successful registration of a mark containing a hashtag is far from a sure thing. The USPTO’s Trademark Manual of Examining Procedure (TMEP) makes it abundantly clear that affixing a hashtag to a mark does not automatically make it registerable.[4] Rather, like other non-hashtag trademarks, your mark needs be distinctive (i.e., either suggestive, arbitrary, or fanciful) to be protectable. Here are a few applicable rules to keep in mind when thinking about registering a mark with a hashtag:
- A hashtag is eligible for trademark registration when it is used to promote or sell goods or services in interstate commerce;[5]
- A trademark consisting of or containing the hash symbol (#) or the term HASHTAG is registrable as a trademark or service mark only (emphasis added) if it functions as an identifier of the source of the applicant’s goods or services; but
- Generally, the hash symbol or word hashtag does not provide any source-indicating function because they merely facilitate categorization and searching within online social media.[6]
Rights and responsibilities of trademark registration
If you are able to show the examining attorney that consumers associate you as the source of the goods or services offered with the #hashtagged mark, then your registration will be granted. Once registration is granted, your rights and obligations will be the same as all other trademark registrants. Namely, you can use your registration to prevent others from using a similar or identical mark with similar goods or services, thus avoiding consumer confusion in the marketplace.
Keep in mind, registration does not mean you have blanket ownership of the hashtag to all others’ detriment. Rather, registration gives you the exclusive use of the mark when selling or offering the goods or services listed in the registration.
Registration also comes with obligations. Namely, you must take affirmative steps to protect your mark, otherwise, you risk having your registration canceled.
In sum
An application to register a trademark containing a hashtag can face innumerable hurdles. However, a qualified attorney can help you develop a filing strategy to minimize the risk of rejection from the USPTO while at the same time helping you navigate the registration process.
If you find yourself with questions about registering hashtags or other branding related inquires, please contact us. We are happy to provide whatever legal support needed to ensure your endeavor’s success.
[1] https://ourworldindata.org/rise-of-social-media
[2] https://www.dictionary.com/browse/hashtag?s=t
[3] https://www.all-hashtag.com/top-hashtags.php
[4] See TMEP 807.14(c)
[5] See TMEP 1202.18
[6] Id.; In re i.am.symbolic, llc, 127 USPQ2d 1627, 1639 (TTAB 2018).