Hashtags have been an easy punchline for about as long as they have been popular on social media engines such as Instagram and Twitter, and this is somewhat propelled by the fact that a good-sized chunk of them serve the one and only purpose of being punchlines to whatever is in the accompanying post (#blessed, anyone? #isthisthingon?).
But for those who use social media in their businesses – which includes the vast majority of startups and growing businesses in the service and/or retail product sectors – hashtags are a supremely important aspect of their business, or a #bfd in the pursuit of #winning if you will (okay, that’s #enough).
The hashtags your business uses are not only an extension of your brand, but can indeed be the channel by which you market that brand. In that sense, they can act like a company logo or proprietary slogan, which businesses seeking to protect their intellectual property can and should trademark.
Which brings us to the question: can you trademark a hashtag?
Trademarks are primarily governed under federal law (although limited protections for trademarks exist under various state laws), and federal law requires that a trademark be filed and approved by the United States Patent and Trademark Office (USPTO). According to the USPTO, a trademark as it pertains to a service or goods, can include, “…generally a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.”
While this certainly includes iconic trademarks such as McDonald’s Golden Arches or it’s slogan “I’m lovin’ it,” the USPTO has approved trademarks for perhaps less ordinary marks such as sprinter Usain Bolt’s “lightning bolt” celebration pose, a silhouette of Karl Lagerfeld’s ponytail, and Tarzan’s yell (“The mark is a yell consisting of a series of approximately ten sounds, alternating between the chest and falsetto registers of the voice”).
All of which is to say, there is nothing special or too out of the ordinary about hashtags when it comes to the ability and willingness of the USPTO to provide trademark protection, and indeed they have approved trademarks for marks far more unorthodox than adding a “#” before a word or string of words. And, indeed, the USPTO has thus far provided trademark protection for numerous hashtags.
Does It Make Sense For Your Brand/Company to Trademark a Hashtag?
The question of whether it makes sense for your brand or company to trademark a hashtag revolves around the issue of what you are trying to accomplish with the trademark, what it is you are trying to protect, and how far the law will go in providing that protection.
If you are hoping that trademarking “#livingmybestlifenow” or “#slothsofinstagram” is going to result in a steady stream of royalty checks showing up in your mailbox, that’s not how it works. The primary purpose of trademark law is to prevent others from benefitting off the goodwill of your brand, services, and/or products through creating confusion in the marketplace over who is actually providing the goods or services. One classic (fictional) example is the restaurant McDowell’s in the movie Coming to America, whose owner tried to win over customers thinking they were coming to McDonald’s while living in fear of representatives from McDonald’s taking legal action.
Thus, if there is another party who may seek to use a hashtag associated with your brand/company to promote its own brand, services or products, and this would cause confusion which hurts your business, then this would be the type of situation in which you might consider trademarking your hashtag. For example, if you own a yoga studio on Smith Street, and you create a popular slogan for your studio of “yoga lives on smith street,” you would not want your competitors to use “#yogalivesonsmithstreet” to attract people to their competing yoga studio and away from your own simply by stealing the goodwill you created with your slogan.
But, before you rush to file a trademark application for every hashtag you use, you should take a step back and think about your broader trademark strategy in consultation with an attorney. If you have already trademarked the slogan “yoga lives on smith street,” you may not need the additional trademark of “#yogalivesonsmithstreet,” as the first trademark may be sufficient protection. And if you have not trademarked the slogan, then the smarter strategy might be to trademark the slogan as opposed to the hashtag. Then again, in some cases, the presence of the hashtag might be so critical to the importance of the mark itself that it could indeed be worthy of its own trademark.
In general, trademarks, what they can and cannot do, and how to go about getting the broadest and most efficient protection are complex topics, and ones best pursued with professional counsel.
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Ethics and Reputational Risks in Trademarking a Hashtag
As part of this broader strategy you should be taking towards trademarks – and indeed all of the intellectual property associated with your brand/company (which you may not even realize exists and thus worthy and in need of protection) – you may also want to think about the reputational and even ethical considerations of trademarking a hashtag.
While you should take very seriously the importance of protecting your intellectual property, your intellectual property strategy should also include consideration of the broader social implications of what could be seen as “privatizing” language and other marks, and how such an action might be perceived among potential clients and others.
The cosmetics brand Hard Candy learned this the hard way when there was a media backlash to the company’s application for a trademark for the hashtag “#metoo” in October 2017. Hard Candy, which primarily sells low-cost cosmetics products in Walmart stores, abandoned their quest for #metoo trademark after public outcry over the obvious question of why a discount cosmetics line should profit off a social justice movement started 11 years prior, and the company’s reputation appeared to suffer as a result.
As bizarre and unwise as Hard Candy’s attempt to trademark #metoo is, it does bring us back to the issues posed earlier with regard to trademarking a hashtag: What business purpose will it serve? What broader effect will it have in protecting and growing your brand/company? What other issues might arise?
For questions to these answers and other IP issues your company/brand might face, contact one of our experienced IP attorneys at The Fried Firm today.
