Is there such a thing as a hashtag trademark? In the US, a hashtag can be registered as a trademark under certain circumstances. Social media hashtags have recently and rapidly become universal marketing tools. Many companies have attempted to trademark their hashtags. Just since 2013, over 600 federal trademark applications have been submitted for hashtag trademarks. It is not uncommon for a company to register it’s slogans or tag lines to protect those trademarks and prevent competitors from using them. A hashtag trademark is the same basic concept.
Hashtag Trademark Must Be Source Identifier
Although the United States Patent and Trademark Office (USPTO) rules provide that hashtags may be protected as trademarks, a federal district court recently held that hashtags may be merely descriptive devices, and not source identifiers. This decision could create future uncertainty for commercial brands interested in obtaining hashtag trademarks.
Hashtags, which started on Twitter as a way for users to follow conversations on similar topics, are words or phrases that follow the pound or hash sign (“#”). Hashtags have since become a popular way for Internet users to indicate that a post is related to a specific issue, news topic, event, company or product.
For a company interested in increasing marketing attention through social media presence, utilizing a hashtag related to the company’s brand or product has been a novel marketing approach. An increasing number of such businesses are now filing for hashtag trademarks related to their brands and products.
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.” This is identical to the standard applied to any other word or phrase that is sought to be trademarked without the hashtag.
In addition, the hashtag itself does not serve any source-identifying function. As a generic or merely descriptive word or phrase is not registrable, combining them with the hashtag is insufficient to allow for registration as a trademark. However, arbitrary or suggestive words and phrases combined with the hashtag are eligible for trademark protection and must be evaluated to determine their source-identifying function.
Hashtag trademarks can be an effective means to spread the reach of a company’s advertising campaigns and increase awareness about their products and services. This has increased in importance due to the fact that social media websites are increasingly becoming consumers’ main information sources.
Limitations of Hashtag Trademarks
There are some limitations on the power of hashtags in a marketing campaign. First, the inherent intent of a hashtag is to be used in online posts by as many people as possible to develop online conversations. Because trademark ownership is exclusive in nature, hashtags present a challenge to hashtag trademark owners in policing uses of their hashtag trademarks. The biggest issue is that a company’s hashtag trademark may be used improperly or in a negative or controversial context by consumers. There is really no way to control how the consumer public will choose to use the hashtag.
Registering a hashtag trademark will not prevent consumers from using it on social media. Other users will have the right to use a company’s hashtag and a trademark will not allow the company to legally challenge anyone using it. It really only functions to prohibit other companies and service providers within the same industry from using the hashtag to directly compete with the company. Twitter has responded to this issue be enacting a trademark policy which provides that a company may not use another company business name, logo or trademark in a manner that misleads or confuses others regarding its brand or business affiliation. Although Twitter has established this policy, the reality is that Twitter has not been consistent in enforcing it.
In conclusion, a company cannot legally prohibit someone on social media from using it’s hashtag, unless they are found to be using it to directly compete with the company’s own products. Even in that limited case, a company would have to prove that business is in the same industry, and in a geographical location that obeys the same trademark laws. The fact that Internet is a global enterprise makes this extremely challenging.