Can #Hashtags Be Protected as Trademarks?

As social media has become ubiquitous in today’s day and age, the hashtag (“#”) has been appropriated for use in marketing and social media. In contrast to the former days of merely being the “pound” sign, the hashtag now can be used in conjunction with clever marketing campaigns or phrasing as means of associating brand names with new products or trends. While millennials have long embraced the hashtag as a way of life, only recently have brand owners truly began to realize the potential value of pairing their brands with meaningful hashtags. As a result, any savvy marketing department now recognizes that a presence on social media dictates frequent use of new hashtags, especially for use on Facebook, Twitter, and Instagram.

In response to this growing trend, the United States Patent and Trademark Office (“USPTO”) has started granting registration of trademarks that include hashtags. Before, conventional advice dictated that any attempt to register marks with hashtags would be ill-advised. In the past few years, however, that changed when the USPTO began to acknowledge the registrability of trademarks that incorporate hashtags. In fact, the USPTO’s Trademark Manual of Examining Procedure now provides guidance as to how applications for hashtag marks should be handled. The federal trademark registry shows that quite a number of hashtag marks have been granted registration in a variety of classes for all sorts of goods and services.

This does not mean that a hashtag comprised of an otherwise unregistrable marketing phrase automatically renders the wording registrable. The USPTO still requires that a hashtag be used in a way that identifies the source or provider of the goods or services. As such, it is important to note that the mere use of the hashtag in social media posts or campaign does not necessarily constitute “use in commerce” in the eyes of the USPTO. For example, the use of the hash symbol in a proposed mark as merely a tag to reference keywords for searching a topic on social media channels does not constitute “use in commerce” as required by the USPTO.

Also, the USPTO does not consider the mere addition of a hash symbol to a mark enough to render it distinguishable from another mark that is otherwise identical or substantially similar. In other words, if a virtually identical mark for similar goods or services has already been registered, the mere addition of a hashtag is not enough to avoid a refusal to register by the USPTO based on the prior mark. Similarly, the addition of a hashtag to wording that is merely descriptive or generic does not make a proposed mark “distinctive.”

As with all potential trademarks, brand owners must be vigilant in their due diligence and clearance search of the mark before attempting registration. While the hashtag has revolutionized the way brand owners can reach consumers through new channels of marketing and social media, it remains vital to consult experienced trademark counsel before seeking official registration of any such mark.

For more information on this topic, please visit our Trademark Registration service page, which is part of our Trademark Practice.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.Additional information about the trademark law firm and its trademark attorneys may be found at www.klemchuk.com.

Klemchuk LLP hosts Culture Counts, a blog devoted to the discussion of law firm culture and corporate core values with frequent topics about positive work environment, conscious capitalism, entrepreneurial management, positive workplace culture, workplace productivity, and corporate core values.

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