Can You Trademark a Hashtag?

Originally published by Mayura Noordyke (US).

#Yes! In the United States, a hashtag can be trademarked if it serves a source-identifying function for the trademark owner’s goods or services.

Hashtags, which started on Twitter as a way for users to follow conversations on particular topics, are words or phrases that follow the pound or hash sign (“#”). Since their inception, hashtags have become a popular way for Internet users to indicate that a post or other piece of content is related to a specific thing – a specific issue, a topic in the news, an event, or even a company or product.

Not surprisingly, consumers’ extensive use of hashtags has gotten the attention of companies that are trying to increase their social media presence, an increasing number of whom are trying to trademark hashtags related to their brands and/or products. Luckily for them, hashtags are registrable as trademarks as long as they meet certain requirements.

According to the Trademark Manual of Examining Procedure (“TMEP”), a hashtag mark (consisting of the pound/hash sign or the term “HASHTAG”) is registrable as a trademark or service mark if it “functions as an identifier of the source of the [trademark] applicant’s goods or services,” just like any other word or phrase that is sought to be trademarked. See TMEP §1202.18. In addition, the pound/hash sign, or the term “HASHTAG,” does not, in and of itself, serve any source-identifying function, which means that combining either term with generic or merely descriptive words or phrases is insufficient to allow for registration as a trademark. In contrast, arbitrary or suggestive words and phrases combined with the pound/hash sign or “HASHTAG” term are eligible for trademark protection and must be evaluated to determine their source-identifying function.

Trademarking a hashtag can be a useful way for companies to spread the reach of their advertising campaigns and increase awareness about their products and services, particularly since social media websites are increasingly becoming consumers’ main source of information. There are, however, some shortcomings and concerns that companies should be aware of. Importantly, hashtags are inherently meant to be used by as many people as possible to develop online conversations. Given the exclusive nature of trademark ownership, hashtags can present a challenge to mark owners in policing uses of their hashtag trademarks. Relatedly, brand owners may open themselves up to exposure or even liability if their hashtag trademarks are used improperly or in a negative or controversial context by consumers. (See our previous blog post – The Rise of the #Hashtag – for more information on hashtags and their potential pitfalls.)  Also, as we previously reported, social networking in and of itself is not eligible for trademark registration service unless the applicant has created a social media platform or forum separate and apart from any non-social networking goods or services.

Ultimately, brand owners should weigh the benefits of joining the Internet “conversation” via the use of hashtag trademarks against the potential issues that can arise due to difficulties in policing how their hashtags are being used. If a company decides that it does want to leverage the reach of a hashtag by trademarking it, it should ensure that the hashtag is not descriptive of the goods and services with which the company intends to use it and should also consider putting in place a system to review and manage how the hashtag trademark is being used.

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