#Trademarks

Hashtags serve an important function in social media, whether used ironically (#yolo – which stands for you only live once) or earnestly (#blessed). By adding a pound sign before a word or phrase, content is organized by topic, which makes it easier to track discussions and find connections.

To marketers hashtags are #gold. On Instagram and Twitter, in particular, they help drive engagement, which is one of the many ways social media marketers measure campaign effectiveness. Some companies have even incorporated their own trademarks into specific hashtags as part of their marketing strategies – such as Madewell’s #everydaymadewell and Travelocity’s #iwannago campaigns.

However, the rise of hashtag uses as marketing tools presents an interesting question – can hashtags be #trademarks?

Legally, yes – but only if the hashtag is used as a trademark to distinguish goods or services from those of others. Even the USPTO (United States Patent and Trademark Office) recognizes that hashtags can be trademarks. In 2013, the USPTO changed its rules to specifically allow federal registration of hashtags as trademarks. Last year alone, there were nearly 1,400 trademark applications for hashtags around the world – most in the United States.

An entirely different question is whether it makes sense to use hashtags as trademark components of an overall branding strategy. It can, but may require more up-front work than a typical hashtag campaign. For example, hashtag trademarks should be evaluated in the same way(s) that other trademarks would be evaluated before implementation. A word or phrase that would not otherwise be a trademark will not be elevated into a trademark by simply putting a “#” before it. Using a hashtag on products or in advertising for services outside of a social media context can increase the likelihood that it will serve as a trademark. When you use hashtags as trademarks, you must tolerate a variety of uses by others on social media sites, as long as the other uses are not trademark infringements or otherwise not allowed, even though social media site users are notoriously unpredictable.

Think of Travelocity’s hashtag #iwannago. Someone might post a Tweet with a photo from a bad date with the hashtag #iwannago as a conversational hashtag. A person might post a Tweet of a photo of a subpar hotel room captioned, “Really, @travelocity? You call this a 4-star hotel? #iwannago” and it would show up among other search results. In both of these cases, the Tweets do not fit the purpose of Travelocity’s hashtag #iwannago campaign with the first example being wholly unrelated to Travelocity and the second being a type of hashtag hijacking or criticism.

What can you do if you do not like how others are using your hashtag trademark? Enforcing hashtag trademarks is the same as for any other trademark infringement, with a consumer confusion analysis. An initial requirement is that the unwanted use by someone else is actually a trademark use. In other words, someone’s use of a hashtag on a social media site as a mere hashtag is likely not a trademark use, cannot lead to consumer confusion, and therefore cannot be prevented. Nominative and other fair uses of trademarks also apply to hashtag trademarks. Social media websites typically have trademark misuse reporting features and post their trademark policies, which tend to track general trademark doctrines that allow for certain parodies and truthful commentary / criticism.

Courts are starting to deal with more hashtag trademarks in trademark actions.  There is still a lot of gray area that needs to be worked out as the law develops.

Until then? #Yolo. Users are free to hashtag their #blessed little hearts out, so long as it is mere hashtag usage.