Trademarking hashtags has emerged as an important topic of conversation online and amongst business owners. The conclusive decision is that hashtags can be trademarked through the United States Patent and Trademark Office (USPTO). In fact, a quick search of the US Patent and Trademark Office database shows over 200 already registered hashtags. However, the benefit of trademarking a hashtag remains dubious.
Trademarking a hashtag can be a long and laborious process. Hashtags, conversely, are often sparked by a temporary occurrence or campaign, and fade rapidly. Additionally, a hashtag must be associated with a good or service provided to the public (within one of the UPSTO’s 45 classes) to be trademarked. The enforceability of the legal benefits is also questionable. The public uses hashtags with (reckless) frequency on several social media platforms now. Though Twitter has a trademark policy, it is rather vague – saying only that “using a company or business name, logo, or other trademark-protected materials in a manner that may mislead or confuse others with regard to its brand or business affiliation may be considered a trademark policy violation.” (emphasis added)
While the benefits of trademarking a hashtag may be unclear, it is important for businesses to note that some companies take hashtags very seriously. As in other trademark infringement cases, companies can receive cease-and-desist letters from other business’ attorneys for hashtags that conflict with registered trademarks or hashtags. Before launching a marketing campaign or social media strategy, companies should do their due diligence to ensure that the proposed hashtag does not conflict with a registered mark. Quick searches can be done through online services such as Twubs or hashtags.org, but a thorough search of the USPTO’s database is advisable.
Hashtags have infiltrated all realms of social media and popular culture. Businesses must now be very aware of the implications of hashtag usage. Whether to trademark a hashtag is an important discussion for marketing and legal teams. However, the more pressing concern is ensuring that hashtag usage does not result in legal conflict with a trademark owner. No matter how companies decide to approach hashtags, they must be mindful in their approach, as hashtags are now soundly established as intellectual property.