Hashtags are ubiquitous from Twitter to Facebook to Instagram to Pinterest. They're used in Super Bowl advertisements, internet contests and fashion advertising campaigns. Therefore, it is not surprising that some individuals and companies want to register and protect their hashtags (and prevent others from copying them).
A hashtag is a word or phrase prefixed with the hash character (or number symbol) “#”. Using a hashtag can make it easier for people to find messages on the internet and social media platforms relating to the theme of the hashtag by simply searching for the hashtag itself. For example, the hashtag #TwitterIPO allows people to find information about Twitter’s initial public offering, and a search of the hashtag #TRIBECAFILMFESTIVAL on Instagram will reveal photographs tagged with that hashtag.
Numerous social media platforms, including Facebook, Twitter, Instagram, You Tube, Google+, Tumblr, and Kickstarter, support hashtags. Some of the most popular hashtags on Instagram include: #love, #happy, and #selfie. Companies use hashtags to improve customer service, to bolster their sales, and to share quick updates with their customers.
Hashtags are also used to market and promote products and services. For example, Nike recently launched a motivational “BetterFor It” advertising campaign using the hashtag #betterforit. Similarly, Harley-Davidson recently launched an advertising campaign using the hashtag #RollYourOwn to promote its brands.
Whether or not a hashtag can function as a trademark and be registered with the United States Patent and Trademark Office ("USPTO") depends on a number of factors, including the nature of the hashtag and the manner and context in which it is being used.
If a hashtag functions as an indicator of the source of a company’s goods or services, and is arbitrary or suggestive for such goods or services, then it may be registrable as a trademark or service mark. Examples of recent hashtags the USPTO has approved for registration include the Coca-Cola Company’s #SMILEWITHACOKE for soft drinks; Nissan North America’s #WITHDAD for motor vehicles, dealership services, and promotional sales events; and Procter & Gamble’s #LIKEAGIRL for feminine hygiene products and advertising and marketing services.
Not all hashtags are protectable. If a hashtag is merely descriptive or generic of the goods or services in connection with which it is being used, then it cannot function as a trademark. For example, the USPTO has indicated that it would deny an application to register the mark #SKATER for skateboarding equipment because it would be descriptive.
The manner in which the hashtag is used may also affect its ability to function as a trademark and to be registrable. For example, the USPTO might refuse registration of a hashtag if it is used solely in the body of text or merely to facilitate searching of specific subject matter. On the other hand, if the hashtag also appears prominently in online or print advertising, it is likely that the USPTO will find that it functions as a trademark.
You should treat a hashtag like any other term or phrase you are thinking about protecting as a trademark. If the hashtag won’t last for longer than one season, you may not want to apply to register it as a trademark. However, if you think it is something that will be used for a longer period of time, then you may wish to register it.
As with other terms you want to use for advertising and marketing purposes, you should consider conducting a trademark search of the term to determine if it is available for use and registration. Also consider whether you will use the hashtag as a trademark, or whether the hashtag is merely descriptive or generic. Because a hashtag can also, in certain circumstances, function as an advertising claim, you should consider whether the hashtag is deceptive, misleading, or unsubstantiated.
Article courtesy of Cowan Liebowitz & Latman PC by Joel Karni Schmidt, who handles U.S. and international intellectual property counseling, protection and enforcement matters for lifestyle and fashion companies, start-ups, hotels and restaurants, financial services firms, wine and food companies, game publishers, a major sports organization, global charitable organizations and foundations, and prominent artists and designers.