Remember when this symbol (#) was just a random button on your parents’ old rotary phone? Remember how we used to call it the “pound key?”
Don’t feel bad if you don’t–it would be easy to have completely forgotten about that!
Because the hashtag has taken over.
The hashtag has become an instrumental part of marketing, and you’ve no doubt spent an unholy amount of time considering which hashtags to use for your social media strategy (and then adding 32 of them to your post so you don’t miss the one that rockets that post into viral territory).
Maybe you’ve even devised the perfect hashtag for your business, and now you want to protect that hashtag. Claim it as one of your business assets.
But how?
Can you actually register a hashtag as a trademark?
Well, it depends.
(Yup, there it is. The dreaded lawyerly answer to your question. You knew that was coming, didn’t you?)
**But before we dive in: this post is legal education and information, not business, financial, or legal advice, and it doesn’t create an attorney-client relationship between us.
This is also an attorney communication under Rule 7.2 of the Rules of Professional Conduct of the State Bar of California and Business and Professions Code Sections 6157-6159.2.
Please chat with an attorney in your area to make sure you’re protecting your business.**
Why use hashtags?
Okay, so you probably know that a hashtag is any word or phrase preceded by a hash (#) symbol.
(That’s right. We don’t even call it a pound symbol anymore.)
Business owners who are active on social media use them online every day as a very intentional part of our marketing strategy.
Those hashtags help us categorize our posts and draw attention from new members of our target audience who may have never found us otherwise.
With the rise of social media sites like TikTok and the hundreds of millions of Twitter, IG, and LinkedIn users, many of our ideal customers actively search hashtags to find the services they need like generations before used Google.
Hashtags are a vital business practice.
Navigating hashtag law
Despite their importance, most of us use hashtags without ever giving them a second thought.
They’re just there–free for anyone to categorize their posts and photos into, right?
Sometimes.
In the case of many hashtags (like #law, for example), the Trademark Trial and Appeals Board (TTAB) finds them to be perceived by consumers as merely informational and, therefore, they fail to function as a trademark.
As a result, much like generic or descriptive trademarks, those hashtags cannot be registered.
That being said, if the hashtag is being used to promote or sell your products or services, it could qualify for registration.
The benefits of registering your hashtag as a ™
If you use your hashtag as a brand name or slogan for your product or service, the way you would use any other name or phrase to brand your business, you can protect your hashtag with trademark registration.
This means it would be protected like any other business asset that you federally registered as a trademark.
And in today’s influencer/social media/online business atmosphere, registering a hashtag is potentially a unique way to build an IP portfolio for your business.
Because while you can’t prevent others from using your trademarked hashtag–imagine trying to police the half a billion users on Twitter–you can prevent competitors who sell a similar product or service from using your registered hashtag to mislead potential customers.
What does a successfully registered hashtag look like?
Companies with large social followings have successfully registered their hashtags as a ™ in order to prevent fakes and copycats from benefiting from their campaigns.
A few examples include:
#SmileWithACoke and #CokeCanPics (The Coca-Cola Company)
#McDStories (McDonald’s)
#MakeItCount (Nike)
But just because these are examples of global giants doesn’t mean you can’t successfully register your personal brand’s hashtag as a trademark.
When your hashtag can be protected through federal ™ registration
For a hashtag to be successfully registered as a trademark, it must function as a source indicator.
In other words, it must identify and indicate the source of the goods or services you are selling. So you should think of it the same way you do any other brand asset associated with your business.
Once you can prove to the USPTO (United States Patent and Trademark Office) that you’ve actually used your hashtag in association with your business, you’re ready to apply for trademark registration to protect it.
You can get started by booking your consultation with Nicole Cheri Oden Law. #Exciting 😉
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