Hashtags. Love ’em or hate ’em, they are everywhere. But can you trademark a hashtag and prevent other businesses from using it?
Last night during the “Cause if you like it, put a Ⓡ on it, oh oh oh” Trademark presentation, a woman asked this great question. My initial reaction was yes, subject to the normal restrictions on marks (descriptiveness, conflicting registrations, etc.). Today I did some research and confirmed this answer.
The “normal” requirements
Generally speaking, you can protect a trademark if it helps consumers distinguish your goods or services from the goods and services of other people in the market. Of course, there are limitations on this. For a full recap of what is required to obtain a trademark, you should check out this post: Trademarks 101 – What Entrepreneurs Should Know.
What about #hashtag trademarks?
If you search the USPTO database you’ll find a lot of marks incorporating the hashtag (or pound) symbol. Within those search results you’ll find live registrations of actual hashtags. Here are a few examples:
- #DREAMBIG! for credit union services.
- #ORIBEOBSESSED for hair products.
- #QUEENBOSS for shirts.
So, the obvious answer is #YES, you can trademark a hashtag.
However, the Trademark Manual of Examining Procedure makes it clear that adding a hashtag to an otherwise unregistrable mark will not make that mark registrable. So using a hashtag isn’t some kind of loop hole to protect your mark.
What rights you’ll get from a #hashtag trademark?
If you obtain a registration on a hashtag trademark, your rights will be the same as other trademark owners. That is, you can prevent other companies from using your trademark in a way that would be likely to lead to consumer confusion. In the example above, if I were to open a credit union and market it with #DREAMBIG!, there is a good chance that would constitute trademark infringement. However, if I were to use that hash tag in a tweet while marketing my law firm, there is a good chance it would not constitute trademark infringement because it is highly unlikely consumers would be confused.
So in short, registering a hashtag trademark won’t mean you “own” the hashtag. It just means you have the exclusive right to use the trademark in connection to marketing the specific goods or services associated with your registration.