Can You Trademark a Hashtag?

The hashtag has become an ever-present aspect of social media, spreading across platforms including Facebook, Instagram, Pinterest and more.

 

Originally developed on Twitter, a hashtag is a word or a phrase following the pound sign used to categorize messages on a specific topic.

 

Searching a hashtagged term will produce all messages or photos tagged with it, so hashtags have the potential to be extremely useful in several areas. Hashtags are used by television shows, celebrities, politicians, companies, and more to gather messages together under one topic. Couples use them to keep track of photos posted on their wedding day. Consumers can use them to rate products or services and even to promote a business. Which then poses the question, can you trademark a hashtag?

 

According to the Trademark Manual of Examining Procedure, you can trademark a hashtag if it is used to promote or sell a product or service. This means that in order to trademark a hashtag, you must demonstrate to the United States Patent and Trademark Office (USPTO) that the hashtag is used in this capacity.

 

Trademarking a hashtag allows one to promote a business or a product in a creative and unique way and protects against others trying to register the same hashtag. Since social media has become consumers’ main source for information, tags are becoming an increasingly used commodity. Businesses often use hashtags as a way for their customers to express their experience with their business or product, hold contests, and more.

 

How to Trademark a Hashtag

Before applying to trademark a hashtag, it is imperative to research potential similar hashtags and marks without tags that may exist to keep from confusing the consumer. You can do some cursory research yourself on sites such as http://twubs.com/ that allow you to enter a hashtag and see what similar hashtags exist.

 

When you have carefully selected the proper hashtag for your product or business, you can work with your trademark attorney to begin the process of filing for trademark protection with the USPTO.

 

Select Proper Filing Basis

Your filing basis is either “use in commerce” or “intent to use.” If you have already used your trademark in commerce with all the goods or services listed on your application, you will file under “use in commerce” basis. If you have not yet used the trademark in commerce but will in the future, you will file under “intent to use.”

 

Application

Next your attorney will fill out your application and submit it to the U.S. Patent and Trademark Office. The application process is nuanced.  You’ll need to compile certain logistical information about the business, craft an accurate description of your product or services, know the specifics of your mark, and supply proof of your use of the mark in commerce (for “use in commerce” applications).

 

Trademark Approval

If the USPTO examining attorney does not raise any objections, or if potential objections are overcome by the applicant, the trademark will be approved for publication and noted in the “Official Gazette” published weekly by the USPTO. You will then receive a notice of publication that states the date on which your trademark officially began being protected.

 

Before you begin the trademarking process, it’s important to consult with a trademark attorney to ensure that you are aware of your rights, any potential issues, and your requirements.

 

Contact the knowledgeable attorneys at Bernick Lifson to help with your hashtag trademarking needs today.

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