Hashtags — words or short phrases preceded by the # symbol — are seemingly everywhere now. The hashtag was initially adopted in the Twittersphere as a means of indexing and linking content to searchable and thus cross-linkable subject matter designations. A designation like #XYZ could be used by people on social media to denote messages about XYZ. The #XZY tag would then cross-link to all messages containing that hashtag and display those messages to anyone who used or searched for the #XYZ hashtag. This would allow a single social media user to gain exposure to potentially thousands of other users around the world who were interested in that hashtag. Hashtags are now used for innumerable subjects and purposes, from politics (#Hillary2016) to social issues (#Ferguson) to the inane (#lolcats). Because use of hashtags in social media can result in the exponential spread of a post across the Internet, much like the Faberge “and they told two friends…” commercial, it was only a matter of time before marketers began to harness the viral potential of # to build brand awareness and entice customers.
Hashtags are clearly an important means of Internet communication and the spread of ideas. Can they though also be registered as trademarks? In certain instances, yes they can. The United States Patent and Trademark Office has published guidelines relating directly to hashtag trademarks. Under these Guidelines, a word or phrase preceded by the # symbol may be registered as a trademark so long as it indeed functions as a trademark by serving as the identifier of source and origin of goods or services. This essentially means that if a proposed hashtag mark, #WORDS, identifies a business name, a product or service, in many instances that mark may likely be registrable. But, if #WORDS does not identify any product or its source and is only descriptive or generic, such as, say, #CHEESEBURGERS or #SOFTWARESOLUTIONS, it likely is not. Thus, the analysis is basically the same with a proposed mark that contains a hashtag as it is with a proposed mark that does not. In the end, if the mark is something that properly functions to identify source, it is likely registrable and protectable. There would not, however, be any significant protection for the # portion of any mark because that symbol alone does not identify source. Rather, it is simply a required Internet-related designation, much like “.com” and any party could use that.
Because hashtags can function as trademarks, they are protectable when they do so. Thus, while the full scope of protection for such a mark will depend on the exact nature of the mark and the specific facts, like any other trademark, the user of a hashtag mark may be able to preclude others from using hashtags without authorization or hashtags that are confusingly similar to their own.
With social media evolving as a larger and larger part of any marketing strategy and the use of hashtags growing in importance both on social media and offline, it is important to consider whether any hashtags that may be used in connection with a business might be protected as trademarks. Our Intellectual Property group can assist and provide advice regarding use and protection of hashtags and trademarks and social media marketing generally and we invite you to contact us to discuss your particular issues.
Photo Courtesy of Maria Elena under Flickr Creative Commons