First of all, let’s get cleared with the definition of the Hashtag. It’s a sign or label used to find posts or information with a theme or contains specific content. A hashtag is created by including the symbol “#” in front of a word or words without spaces.

Nowadays, the hashtag now can be used in conjunction with clever marketing campaigns or phrasing as a means of associating brand names with new products or trends. Do Hashtags Serve a Purpose? Of course, they do! In today’s world of social media, users can quickly get bogged down by information overload. Using hashtags makes it easy to cut through digital clutter focus only on the information we really want. Hashtags are typically used on social media sites such as Twitter, Instagram, YouTube, Google+ and Pinterest.

Can a Hashtag Qualify as Intellectual Property?

Since hashtags are not ideas or inventions subject to patent protection and are too short to qualify for copyright protection, your best bet for securing rights to #thisisawesome is through Trademark protection.

Trademarks Generally

A trademark is any word, phrase, symbol, design or any combination thereof, used to distinguish the products or services of one person or organization from those of another.

Trademarks serve the dual purpose of:

• Incentivizing companies to provide quality products and services
• A trademark owner has the exclusive right to use its mark nationwide in connection with its particular goods or services.  While in the United States trademark rights are based on use, federal registration significantly enhances those rights.
• Protecting consumers by helping them to identify the original source of a product or service 

A registered trademark owner enjoys the following benefits:

• Nation-wide priority and privilege to exclusively use this mark in relation to the product or service for which it was registered
• National notification and notice
• Inclusion in USPTO trademark searches
• Use of the ® symbol
• A legal presumption of ownership and exclusive rights
• Incontestable status after five years of registration
• Increased domain name protection
• Facilitated foreign trademark registration in over 50 countries via the Madrid Protocol
• The ability to register with U.S. Customs to stop the importation of counterfeit and confusingly similar goods
• Monetary remedies, including infringer’s profits, damages, costs, and sometimes, treble damages and attorney’s fee

Trademarking Hashtags

The U.S. Patent and Trademark Office (USPTO) defines a hashtag as a form of metadata comprised of a word or phrase prefixed with the symbol “#” (e.g. #Chicago, #SCOTUS). The USPTO considers the following factors in deciding whether to register a hashtag:

• Context
• Placement of the hash symbol in the mark
• How the hashtag is being used
• Types of goods or services identified

The placement of the hashtag

Used before a number (such as “#9”), the hashtag will be viewed as meaning “number nine” instead of “hashtag nine.” Also, if the hashtag symbol is separable from the other part of the hashtag, the company will likely have to disclaim the symbol (“# INGENUITY” for business consultation services had to disclaim or not claim rights to the hashtag symbol).

The types of goods or services identified directly affect whether the hashtag is protectable

Let us give you an example, using the hashtags “#coffee” for a coffee shop does not identify the source of the coffee but merely identifies the relevant product class. On the other hand, “#Starbucks” signifies a specific source of coffee. Similarly, Nike’s slogan “Just Do It” is still considered a trademark when it is hashtagged (#JustDoIt). Hence, the hashtag cannot merely describe or generically identify the underlying goods or services.

In short, hashtags must follow the same trademark rules as words and symbols—they must signify a specific source of goods or services.

If you have questions about the information presented here or if you would like to receive personalized advice, contact BDS Legal Services and get a free consultation.   

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