By Jason H. Kasner
Popularized by Twitter, hashtags are so ubiquitous that they are now a part of our cultural lexicon. The term “hashtag” in its modern iteration was even added to the Oxford English Dictionary in June of 2014 (“hashtag n. (on social media web sites and applications) a word or phrase preceded by a hash and used to identify messages relating to a specific topic; (also) the hash symbol itself, when used in this way.”[1]). Hashtags provide a quick and easy reference point and act as a searchable element for social media users to locate content regarding a certain subject. Essentially, the hashtag is a keyword(s) that draws traffic to certain posts based on their content, not necessarily their source.
The question enterprising social media moguls want answered is – how can we protect a hashtag? More appropriately – how can we own, and exclude others from using our hashtag? Individual words and phrases are not protectible under copyright law or patent law. That leaves trademark law, which can offer protection for terms and short phrases. Even so, hashtags seem to be that proverbial square peg that doesn’t quite fit under the penumbra of trademark protection. In a trademark sense, hashtags are very similar to website addresses (www.xyz.com) and Twitter handles (@xyz) where, historically, little to no trademark significance has been attributed to the symbols associated with these uses (i.e. “www” “.com” and “@”).
Hashtags typically indicate the subject matter of social media content and thus, are descriptive in nature. Trademarks, on the other hand, are designations of source, and the general rule is the more distinctive (and less descriptive) the mark is, the stronger the trademark rights in that mark will be. So, although hashtags might be clever and original, hashtags as we typically encounter them in social media do not function as trademarks.
Adding a hash symbol (#) does not transform the term into a trademark and does not impart any ownership rights in the term, per se. In fact, the U.S. Patent and Trademark Office does not consider the # symbol to be a distinguishing feature of a mark, and the # sign is treated the same as any other punctuation mark or common symbol.[2]
In a recent decision, See, In re i.am symbolic, llc, 127 USPQ2d 1627 (TTAB 2018), the Trademark Trial and Appeal Board (“T.T.A.B.”) confirmed this view. Well known singer/songwriter and pop culture personality will.i.am (notably from the musical group Black Eyed Peas) attempted to register the mark #WILLPOWER for various clothing items. On examination, the USPTO refused to register the mark, citing likelihood of confusion with a prior registration for the following design trademark also for clothing:
On appeal, the TTAB affirmed the refusal to register holding that the # hash symbol was not a distinguishing feature of will.i.am’s mark. The TTAB stated in no uncertain terms, “[w]e find, in this case, the hash symbol does not have source-indicating distinctiveness and at most simply appears as the social media tool to create a metadata tag.” Id.
In sum, a successful hashtag is generally one that garners attention and generates popularity through re-use by the social media masses. They are not typically used for long periods of time and are a tool of today’s “hot news” culture, used to generate buzz around a certain subject. When used properly, trademark rights can last a long, long time and the strongest marks carry a strong association in the mind of consumers as the source of a particular product or service. So, while the two concepts seem similar, when you look at the underlying purpose and use of each, you will find they are quite different.
A good intellectual property attorney can help you protect your rights and guide you towards the best available option for you.
[1] http://www.oed.com/view/Entry/389023#eid301493073
[2]“. . .[T]he addition of the term HASHTAG or the hash symbol (#) to an otherwise unregistrable mark typically will not render it registrable. Cf. TMEP §807.14(c) (“Punctuation, such as quotation marks, hyphens, periods, commas, and exclamation marks, generally does not significantly alter the commercial impression of the mark.”); TMEP §1209.03(m) (addition of generic top-level domain name to otherwise unregistrable matter typically cannot render it registrable). Accordingly, if a mark consists of the hash symbol or the term HASHTAG combined with wording that is merely descriptive or generic for the goods or services, the entire mark must be refused as merely descriptive or generic.” Trademark Manual of Examining Procedure. October, 2017. § 1202.18 “Hashtag Marks.”