Photo by Anggie

The hashtag. Used in memes, Tweets, selfies, commercials, and just about everywhere we look…

Widespread use began with Twitter in 2009, but it now extends throughout social media. The hashtag is a sort of shorthand for the digital generation, creating a searchable link using the word or phrase following the hash symbol (formerly, in the analog days, known as a pound sign). In addition to the grouping and search functions hashtags are utilized for, the hashtag has found a home with businesses and major brands. In fact, hashtags have proven effective for marketing purposes, including brand promotion and awareness, campaigns, and consumer engagement overall. Using a hashtag can be a smart business strategy to promote a businesses’ online presence, similarly to a tagline or logo. So, now that hashtags are found on products, in media broadcasts, and at political events, can a hashtag be protected through trademark registration with the United States Patent and Trademark Office (USPTO)?

In 2013 the USPTO settled this question by adding a section for hashtags, defining them as registrable, but only if the hashtag functions as an identifier for the source of the goods or services (like any other trademark). The mark must also be used in connection with the relevant goods or services, in commerce (like any other trademark). Trademark laws should protect a hashtag, being an expression of an idea, when used to promote a brand, service or type of good. Just this past March, however, a clothing maker brought trademark infringement claims based on a former designer’s use of hashtags on social media featuring the clothing line’s name. The court found that the use of a competitor’s mark in a hashtag on social media could deceive consumers, and thus be considered trademark infringement.

The example above is a clearly a competitive use of hashtags, but still unclear is the issue of hashtags being used for non-competitive, distinct goods and how trademark law will address this. The well-accepted test for trademark infringement is “likelihood of consumer confusion.” When marks are identical but used for unrelated goods or services and advertised in different channels, courts have traditionally found that consumer confusion is unlikely. However, the use of identical hashtags will create a single feed of every post with that tag, regardless of the goods or services. Because the tag itself is the advertising channel of social media, the businesses cannot separate unrelated goods and services under the same hashtag. This leaves the hashtag area of law unsettled. #confusing

So are hashtags just another social media fad without long-term viability for businesses to use? Or will protecting a hashtag for social media use prove a wise business choice? Regardless of the outcome for hashtags, their use can be effective marketing tools and a trademark search is a smart place to begin to register your hashtag as a trademark (or any other trademark). If you have a hashtag you’ve used for some time, or one you plan on using, it would be smart to discuss your options with a trademark attorney before slapping that pound sign on your slogan. #prudentmove

Disclaimer: The information in this article is presented for informational purposes only, and should not be taken as legal advice. Before acting on any information presented in this article, you should consult an attorney regarding the facts of your specific situation. We would love to hear from you, so please feel free to contact Wilkinson Mazzeo for a consultation.

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