Can you trademark a hashtag?

In the US, hashtags have been accepted in trademark applications since 2013 but a recent US court case has cast a shadow of doubt over the enforceability of hashtag trademarks.

The Oxford Dictionaries' definition of a hashtag is “a word or phrase preceded by a hash sign (#), used on social media websites and applications, especially Twitter, to identify messages on a specific topic”. Hashtags are used by companies on a daily basis to promote their goods and services on social medias sites, such as Twitter, and have become an integral part of marketing campaigns. However, can this invaluable symbol be registered as part of a trademark name and have trademark rights?

According to INTA, an infringement case  between two e-cigarette companies came to a close when the court ruled that the use of the term “#cloudpen” by the accused company was not classed as infringement since “hashtags are merely descriptive devices, not trademarks” and that the use of a hashtag was “a functional tool” to promote the brand. However, one cannot be certain that the court rejected the infringement claim for this reason  as they also stated that the term ‘cloudpen’ is merely descriptive on its own.

Since 2013 over one hundred registrations have been accepted by the USPTO containing the hashtag symbol including the Always #LIKEAGIRL campaign and  #THESELFIE for photography equipment. However, all hashtag applications that were generic or descriptive, such as,  #PINUPGIRLCLOTHING for women’s clothing, were rejected.

Although the USPTO has allowed trademarks including hashtags to be registered, due to the outcome of the aforementioned infringement case, companies have been left wondering whether their hashtag trademark rights are in fact enforceable.

The enforceability of hashtag trademark rights has yet to be determined by the law. Therefore,  in order to protect your brand on social media it is not advisable to rely on hashtag trademarks alone. You should register your chosen term without a hashtag as a trademark and complete a comprehensive trademark search before doing so to ensure that it would have enforceable trademark rights and act as a source identifier. Furthermore, in order to reduce the likelihood of trademark infringement, on social media companies should use hashtags that don’t include brand or company names and instead should use generic terms and phrases.

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