Trending: Hashtags as Trademarks

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Not too long ago, advertisements on the radio, print media and television were the best means to spread the word about any goods or services that were to be marketed. Times have changed and it takes more than just a few ads and discounts to retain consumers and maintain a steady market share. Marketing, publicising and brand building have reached new heights in the last few years, thanks to the internet. Keeping pace with changing times and making a prominent place in the cyber space seems to be the biggest challenge for most business houses in this competitive market.

Joining the existing publicity techniques is the very popular hashtag symbol! What started off as a trending symbol on Twitter a couple of years ago is today dominating the social media at large. Initially, people tweeted using the hashtag symbol and one could view all content relating to that particular hashtag in one place. The hashtag craze got on and the symbol is no longer exclusive to Twitter. Users across all social media platforms like Facebook, Instagram, Tumblr etc. are using it as a mode of expression in their status messages, posts, pictures and the like.

The latest buzz is around the registration of hashtags as trademarks. A basic search with the USPTO reveals that there are over a hundred and fifty trademarks which include the Hashtag. Essentially, for the purpose of registering them or even to determine whether they should be registered, it needs to be judged as a trademark. Hashtags along with the proposed trademark have to be in association with the goods or services in connection with which they are being used. The process of registering a hashtag is similar to that of a trademark. A basic trademark search to ensure that the hashtag isn’t an already registered mark is mandatory to avoid any infringement suits. The Unites States Patent and Trademark Office (USPTO) has rightly stated that what marks cannot be registered as a trademark, cannot be registered as hashtags.

There’s no straight jacket formula to determine what hashtags can be trademarks and what can’t but there are a few details one should keep in my mind. The first step is to understand that a hashtag is going to be used primarily on social media and not directly on goods or services, therefore it should be unique and creative.  Another important consideration would be to avoid use of marks that are common to that trade in general because it isn’t likely to create an impact on the targeted audience. Most often, what we see on social media today are abbreviations of the brand name or some particular tag line or slogan that a brand wants to promote.

So, when a unique phrase is coined and used with the hashtag on social media and that becomes associated with the brand and the owner of the brand, it becomes a good trademark and something that could be registered.

For example, let’s take Nike. They have registered trademarks for Nike, Just Do It and the swoosh symbol which forms their logo. These marks are widely popularised by advertisements, hoardings and posts/pictures on social media platforms. However, they might be using related hashtags on the social media, say, #runningcommunity or #freerunning which are a part of their ad campaigns but they may or may not be registered trademarks. Therefore, registering these hashtags as trademarks may be a prudent business decision.

On the social media, all publicity is not always good publicity. Use of social media for promotion can work both for and against one’s brand. For instance, McDonald’s started using #McDstories on twitter so that customers could share their experiences using that hashtag. It backfired on them when customers started sending in only complaints and they shut it down within 2 hours. However, there are numerous cases where hashtags have become popular on social media because of excessive usage by the company and other users in general who are happy to sing songs of praise!

Another point to consider would be the longevity. Trends these days change as fast as person can type out the hastag trademark on twitter. So, when considering the hashtag, if the mark is something that can be used to identify the owner and can be used for a long time, it may be worth protecting, but if it is just to denote a contest or piggyback on something that’s trending, it may not make very much sense.

Also, where there is a trademark, the possibility of it being infringed cannot be ruled out. In the case of hashtags as trademarks, the pertinent question that arises is to what extent a hashtag mark owner can actually exercise his rights over that mark. The social media is rightfully a medium to praise, criticise or analyse any goods or services. However, there is not much clarity on the rights of trademark owner to stop a user from doing so or the action he can take thereafter as yet.

So in effect hashtags can be registered as trademarks and can go a long way in promoting a brand on various social media platforms. It has its pros and cons and one can only hope for good publicity! As to the extent of rights of hashtag trademark owners, we will only know based on the course of action of trademark owners and decisions of courts in this regard. #Justsaying #notlegaladvise

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If a registered trademark exists already, can one use the phrase as a hashtag (unrelated to the business) with no consequence?

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