By: Marie Smith

If you’re a social media veteran, you probably already know to use hashtags to add context and humor to your posts (“This has been the longest week ever #TGIF #LetTheWeekendBegin”) or to search for specific content (“#SelfDrivingCar”).  Hashtags are popularly used on major social media platforms including Twitter, Instagram, Facebook, Tumblr and Pinterest.  In recent years, hashtags have become driving tools for online interaction between businesses, entertainers, and consumers.   

Businesses and entertainers are using catchy hashtags for promotional campaigns, events and marketing purposes.  Some have even taken this a step further by obtaining trademark protection for such hashtags.  Since hashtags can be used by everyone, including competitors, a trademark may provide some protection.  However, before you decide to register a hashtag, it is important to take the following considerations into account:

  1. Some hashtags cannot be registered

According to the United States Patent and Trademark Office (the USPTO), a hashtag is registrable “only if it functions as an identifier of the source of the applicant’s goods or services.”  When examining a proposed hashtag, the USPTO considers the following factors:

  • The overall context of the mark;
  • The placement of the hash symbol in the mark;
  • The identified goods and services; and
  • If available, the specimen of use.

For example, the USPTO says that “#SKATER” is not registrable because the hashtag simply describes people who skate.  On the other hand, the USPTO permitted Reckitt Benckiser to register “#blamemucus” to market its Mucinex brand of over the counter cold and flu medicines.  The Mucinex twitter account encouraged consumers to use the hashtag when tweeting about their colds.

  1. Trademarking a hashtag does not prevent others from using it

Anyone can still use a trademarked hashtag, so long as they do not cause confusion about the goods or services that are protected.  It is your job to track and monitor the use of your trademarked hashtag.  The USPTO is only responsible for reviewing trademark applications and determining whether they meet registration requirements.  It does not assist you with policing against infringers or enforcing your rights in the mark.

  1. Timeframe

When will the hashtag be useful to you or your company?  If you are using the hashtag for a certain season or event, it is important to be aware that the registration process may take about six months to a year, or even longer depending on various factors:

  • Whether you decide to file an application based on actual use or intent-to-use;
  • Whether the USPTO rejects your application; and
  • Whether third parties file an opposition to your mark.

 

  1. The law is still developing in this specific area

Be mindful that the law is still developing in this area and that not all courts give hashtags trademark protection.  So before you begin the process, it is recommended that you meet with a trademark attorney to determine how and whether trademarking a hashtag can meet your business goals.

Contributors: Elizabeth Sy

Marie Kym Smith

Associate Attorney

(212) 865-9848

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