The law remains unsettled when it comes to trademarking a hashtag. Proceed with caution.

A hashtag is a word string preceded by a “hash” or pound sign (#) and it’s used primarily to identify themes, topics, and conversations in social media platforms. A hashtag is much like a keyword that facilitates a search by topic.

Here’s the issue in a nutshell: Unlike a company name, which is trademarked to protect a company’s brand identity and keep anyone else from using the mark, hashtags also serve a functional purpose of allowing people to engage in what I’ll call “cyber conversations” with a common theme or topic. This was the original purpose of a hashtag. Businesses, however, have come to use the hashtag as a powerful tool in their marketing campaigns to heighten brand awareness. The hashtag is meant to be used and shared by others.

In 2013, the United States Patent and Trademark Office (USPTO) recognized the hashtag as being trademarkable, but “only if it functions as an identifier of the source of the applicant’s goods or services.” This is the same way the USPTO examines applications for traditional marks, i.e., the words used in the hashtag must identify the source of the good; they cannot merely be descriptive (generic).

DISTINCTIVE VS. DESCRIPTIVE

For example, the following source identifying hashtags have been granted by the USPTO for being distinctive:  

#MYCHASENATION for “entertainment services, namely, conducting motorsports racing events; regulating, governing and sanctioning motorsports racing.”

#LIKEAGIRL for “providing information in the field of female empowerment, anti-gender discrimination via social media.”

#THESELFIE for “photography and videography equipment, namely, remote shutter releases.”

However, the following hashtag registration applications were denied for being too descriptive or generic:

#PINUPGIRLCLOTHING for “online shopping site and retail stores featuring women’s vintage inspired clothing, swimwear, footwear… ”

HASHTAGSKATE for “skateboards, skateboard decks…”

USE IN COMMERCE

Lastly, a hashtag must be used in commerce in order for it to be registerable. The first to use the hashtag wins.

But… not so fast.

Recent court rulings have put the enforceability of the “hashmark” in question. The U.S. federal district court decision in Eksouzian v. Albanese states that Plaintiff’s hashtag was merely “a functional tool to direct the location of Plaintiffs’ promotion so that it is viewed by a group of consumers, not an actual trademark.” This is not the same standard used in traditional trademark analysis, which is “likelihood of confusion” in the eyes of the consumer, however one see how confusion may arise.

SHOULD YOU TRADEMARK A HASHTAG?

It depends. (Don’t you hate it when lawyers say that?) The first question you must ask yourself is this: If it came down to a lawsuit, would you be willing to go to court to fight to the bitter end? If you’re a major player with a big financial investment at stake, you’d most probably would. But for small business owners, the hashtag question is still up in the air. You’d have to be deeply committed to your brand to want to fight that battle.