Those readers who use social media will be familiar with “hashtags” – words or short phrases preceded by the # symbol that are used to identify and give context to social media posts. Various social media services (like Twitter, Instagram and Pinterest) enable users to use a hashtag to search for and group posts about a specific topic, so hashtags perform an important function in the social media world as well as helping to make social media posts interesting and fun.
A number of companies have recently sought to register as trademarks with the United States Patent and Trademark Office hashtags used to identify and describe their goods and/or services. As a general proposition, there should be no reason why a hashtag cannot serve as a trademark so long as the hashtag satisfies the requirements for trademark protection – primarily, the hashtag must not be generic and must serve as a source indicator to identify the source of a particular product or service. Keep in mind, however, that the # symbol used in front of a phrase to signify the phrase as a hashtag has no trademark significance – the phrase incorporated into the hashtag claimed to be a trademark must stand on its own as a protectable trademark. For example, one could not obtain trademark protection for the phrase “sandiegofood” simple by converting the phrase to the hashtag “#sandiegofood” because the underlying phrase is generic.
While a hashtag likely can function as a trademark in the appropriate case, the question remains about the value and practicality of registering a hashtag as a trademark. The owner of the hashtag trademark likely could prevent competitors from using its hashtag trademark to promote the competitor’s goods and services under a traditional trademark infringement analysis. However, the essence of hashtags is to facilitate the collaborative sharing of information on social media. Consequently, the owner of a hashtag trademark likely could not prevent social media users from using the hashtag in social media discussions even if the hashtag is a registered trademark.
As probably is apparent, there is significant gray area about how hashtags can function as trademarks and what will and will not be acceptable use of the hashtag trademark. It will be interesting to see how the law develops in this interesting and important area.