Can You Trademark a Hashtag?

Rémi Beaupré, Meme Snippets, 2012 by Retis from Flickr (Creative Commons License)

Rémi Beaupré, Meme Snippets, 2012 by Retis from Flickr (Creative Commons License)

I spoke at TechPhx on Social Media Horror Stories from the Legal Trenches. One of the stories I told was Turner Barr’s experience with having his blog, Around the World in 80 Jobs, essentially shut down because another company registered the trademark in the same name. At the end of my talk, someone asked if you could register the trademark in a hashtag.

A trademark is the words, slogans, logos, colors, packaging, etc., you put on your products that differentiate you from your competition. If you don’t register your trademark, you get the exclusive right to use your marks where you’ve established your market. When you register your trademark, you get the exclusive rights to use your marks on your type of products everywhere in the U.S. If you want to know more about trademarks, check the story behind the Burger King trademark.

Hash Tags are Like Snow Flakes by cambodia4kids.org from Flickr  (Creative Commons License)

Hash Tags are Like Snow Flakes by cambodia4kids.org from Flickr (Creative Commons License)

Just like you can register a trademark in a company name, product name, or slogan, you can register a trademark in a hashtag. The first rule is your trademark can’t be the generic product. If you own a coffee shop, you can’t register the trademark #coffee. If the U.S. Patent and Trademark Office (USPTO) let you have that, you could stop your competition from calling their coffee “coffee,” which would be very confusing. You could register your business name (i.e., #DansCoffee) or a slogan like #GreatMornings or #WheresMyMug.

The second rule is you can’t claim a trademark that your competition is already using. If you were a soda manufacturer, you couldn’t register the trademark #Coke or #CocaCola unless you were the Coca-Cola Company.

Another thing to keep in mind is when you register your trademark, you have to declare what you’re claiming as your trademark and what goods or services you’re using it on. You only get the exclusive rights to your mark in your arena of goods. You can’t stop another company from using a similar trademark on their products as long as they are completely unrelated.

Registering a trademark allows you to prevent your competition from using your trademark or something similar to it. It doesn’t give you the ability to stop people from using your slogan in their everyday lives. For instance, the Williamstown Theatre Festival could register the trademark in the hashtag #WTF which would allow them to prevent other theatres from using the same hashtag to promote their products, services, and events, but it would allow them to stop everyone who uses it on Twitter to mean “What The Fuck.”

Registering a trademark is a long process. It can take months for the USPTO to look at your application and then there may be several rounds of communications between you and the USPTO before your trademark is approved. If you want to claim the exclusive right to use your desired hashtag, it should be for something that you’re planning on using for a long time.

So can you register a trademark in a hashtag? Yes. Should you register your hashtag as a trademark? It depends on your situation. That should probably require a joint meeting with your marketing staff and your lawyers. If you want to chat with me about this or any other topic, you can connect with meTwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
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  • Lesley Ellen Harris

    Interesting, I just tweeted this! Thanks. When teaching about copyright law I always discuss whether tweets are protected but copyright. In short, usually not but it may be possible.

    • http://www.CarterLawAz.com/ Ruth Carter

      The minimum you need to have a copyrightable work is an original work of authorship fixed in a tangible medium. A tweet is fixed in a tangible medium so the question would be does the tweet in question contain an original work of authorship. Given that there are only so many ways to say things and “independent creation” is a valid copyright infringement defense, it could be a tough case to win.

      • Lesley Ellen Harris

        Yes, I like to say that the copyright protection of a tweet would be likely be an exception rather than the rule. Of course, it depends on each particular case and at the end of the day it is up to a judge in a court of law.

  • http://www.pardonmyhashtag.com PardonMyHashtag

    Yes hashtags are a form of intellectual property that can’t be owned, and like all items, once they are in the public domain, a trademark becomes pointless.
    We always apologise for dumping our hashtags on pages like this, by adding:
    #PMHT #PARDONMYHASHTAG
    http://www.pardonmyhashtag.com
    It makes hashtag dumping a little more acceptable

    • http://www.CarterLawAz.com/ Ruth Carter

      When a company has a discussion about their marketing strategy, it should include whether they want to claim a hashtag as a trademark and plan accordingly.