Yes, you can trademark a hashtag (#) symbol for name, brand, logo, or slogan “only if it functions as an identifier of the source of the applicant’s goods or services.” TMEP § 1202.18. The United States Patent and Trademark Office (“USPTO”) explains that a hashtag is registrable only if it functions as a source identifier. It also says that a hashtag trademark cannot exist not merely as a way to foster discussion or searches on social media.
In plain English, that simply means that a hashtag must indicate the source of goods and/or services sold under it. Finally, its purpose cannot merely be to find a topic on social platforms like Twitter, Instagram, or Facebook.
This begs the question, are there risks or downsides to filing for a hashtag?
I. Is There a Downside to Trademarking a Hashtag?
With people increasingly spending time on social media, more applicants are filing for trademarks incorporating a hash (#) symbol. According to Statista, Americans spent 145 hours on average on social media.
The Trademark Trial and Appeal Board explained that it sees a hashtag as adding little to no uniqueness to a word. See In re i.am.symbolic, llc, 127 USPQ2d 1627, 1633 (TTAB 2018) (hashtags merely “play a functional role in facilitating searches on social media platforms.”). Nonetheless, your hashtag may receive trademark protection provided it follows all trademark formalities and some specific rules about symbols. Below, I talk about some of the pitfalls to avoid when trademarking a hashtag.
A. Adding a Hashtag to an Unregistrable Trademark Will Not Make it Registerable
This means that adding a hashtag to an unregistrable mark will not automatically transform that generic mark into a distinctive mark. See TMEP § 807.14(c). In fact, Section 807.14(c) explains that the addition or deletion of symbols and punctuation does not significantly alter the “commercial impression” of a trademark. As such, adding a hashtag to a fanciful, arbitrary, suggestive, or other distinctive words or phrases is acceptable, but there is no benefit to a hashtag’s addition to a generic or merely descriptive term. Examples of generic or merely descriptive terms are “COFFEE SHOP” for coffee shop services or “BEST SOFTWARE MARKETPLACE” for downloadable software.
Accordingly, the biggest hurdles that stand in the way of a hashtag are trademark Office Actions for:
- failure to function as a trademark; and
- merely descriptive mark.
Related: Trademark Office Action Responses
However, that should not stand in your way if you intend to register a unique, distinct mark.
B. You May Need to Disclaim Your Hashtag if It is “Separable”
The USPTO explains that a trademark is registerable with the hash symbol where the symbol and word are “separable from other registrable matter.”
For example, the trademark “# ENDURANCE” for software services is registerable with the hash symbol’s (#) disclaimer.
In contrast, the trademark “GOAT #PLAYER” for coaching services in sports leagues would only require a disclaimer for #PLAYER.
However, please be wary of registering hashtags that are solely to organize search functions on social media. For example, #FilmIsNotDead is a popular hashtag used by photographers and enthusiasts to find film photographs.
II. Can Other People Use My Trademark Hashtag?
Here, I have to give the lawyerly answer—it depends. Even if you received a trademark for a hashtag trademark, other people could use your trademark under certain limited circumstances. For example, if you file a trademark for #Petal2TheMetal for computing hardware in Class 9, Formula 1® racing or NASCAR® may use that hashtag to promote a very different service. On the other hand, an online retailer of graphics cards could not lawfully use that hashtag in the same country you registered your hashtag trademark.
That raises the next question, how can you trademark a hashtag?
III. How Can I Trademark My Hashtag Symbol?
A trademark for a hashtag is no different than a trademark for a word, brand, logo, or slogan. Therefore, there is no special requirement. To trademark a hashtag, you would conduct a search and file a trademark. You may also need to answer any Office Actions refusals the USPTO examining attorney sends your way.
Filing a trademark alone is not a good idea because trademark filing is the practice of law.
However, assuming you decide to file a hashtag by yourself, you should make sure to include the hashtag symbol exactly the way you would like to write it.
For example, filing for #123JavaGuru would not protect your hashtag if you were to write #123JavaExpert or #123CSSGuru.
Conclusion and Recommendation
In summary, you can trademark a hashtag so long as it functions as a source identifier. However, it cannot merely serve as a functional tool to identify a topic, trend, or idea. In addition, hashtags face certain pitfalls such as failure to function as a trademark or a merely descriptive refusal. Finally, other people may use your hashtag if their use is unrelated to your use.
However, this should not discourage you from attempting to trademark your brand’s hashtag. My recommendation is to contact a qualified trademark attorney. Syed Law can handle the trademark for your hashtag.
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