It took weeks of trial and error, testing and toiling, but you finally did it. You’ve created a unique and completely original hashtag to complement your brand. You envision standing in the light of great hashtags such as #tbt, #fail, and #blacklivesmatter. You fantasize about how you will capitalize on your newly acquired social media fame to rake in the loot, then you realize that you need to protect your precious intellectual cargo. You need to trademark your baby before someone steals it… right?
We’ll weigh the pros and the cons of trademarking and what it means for individuals and small businesses to register a trademark for a hashtag.
Technically you can trademark a hashtag, but should you? The Trademark Manual of Examining Procedure (TMEP) states that a pound sign [#] know as a hashtag used on social media platforms such as Twitter, Instagram, and Facebook, preceded by a word or a phrase, is registrable as a trademark or service mark if it “functions as an identifier of the source of the [trademark] applicant’s goods or services.” Though legally possible and relatively inexpensive, few hashtags have been trademarked since the creation of the hashtag in 2007. In order for you to secure a registered trademark you have to meet the minimum requirements.
The USPTO, considers the following before a hashtag trademark is approved for registration:
- Context
- Hashtag symbol placement
- The use of the hashtag
- Types of goods or services
Trademark ownership in the United States give you exclusive rights to your hashtag. Some additional benefits afforded to you are:
- Notifications if your trademark is used
- Official use of the registered symbol ®
- Protection against domain name squatters
Inherently, hashtags are meant to be used and shared via social media. This makes “protection” through registering a trademark and identifying violations difficult in most instances. Additionally, proving damages if you are generating a profit from your hashtag may be difficult. Before you proceed with filing for a hashtag trademark you should consult with an attorney specializing in intellectual property. Trademarking may be your next step in the evolution of a budding brand to protect against infringement, or it could be an unnecessary exercise in bureaucracy.
