The following is a transcript of an episode of the Tricks of the Trade(mark) podcast, listen to the episode here.
As I record this right now, I’m looking at the trending tags on Twitter and #hursdayThoughts and #NationalBurritoDay are two of the top trending hashtags at this moment. Clients approach me all the time and ask about whether they can protect or register hashtags that they use in social media to promote their brands and services and products. The answer, like most things in trademark law is: it depends, it’s not a simple black and white. Hashtags can sometimes be protected as trademarks, but the use to collate posts on social media with a tag using a particular phrase, is generally not going to function as a trademark.
A hashtag, a phrase that begins with the hash # symbol and is used for some other service. Perhaps it’s used on a product as part of a brand name or perhaps it’s actually used as a slogan in advertising the services and not merely to point to social media collating, then it may function as a trademark and it may be registrable. There are many phrases that begin with the numeral sign or the hash sign that are registered on the USPTO, but there are also many applications for hashtags that have failed at the USPTO because they weren’t being used in a manner that really indicated the source of a product or service, they weren’t being used in a manner that functioned as a trademark. So if you have a hashtag or thinking about using a hashtag, make sure – before applying – you review whether the evidence of use you have or will have is likely to support functioning as a trademark, to indicate the source of goods or services, before applying.