Hashtag Trademarks: #ItsAllAboutTheUse
Brand owners have embraced hashtags (words or phrases preceded by a hash or pound sign - #) as a way to both engage consumers and track social media posts regarding a specific product or topic. Not surprisingly, the increased utilization of hashtags has led to a rapid increase in applications for hashtag marks in United States Patent and Trademark Office (USPTO) – particularly for services. However, many of these marks fail to register for technical reasons that can easily be dealt with if understood and addressed prior to filing.
The USPTO examines applications for hashtag-fashioned marks in the same manner as any other mark. Therefore, a hashtag preceding an otherwise unregistrable term, phrase, or symbol will not be sufficient to overcome a refusal to register based on genericness, descriptiveness, or likelihood of confusion. Adding a “#” symbol to merely descriptive wording, for example, only creates a mark that is still merely descriptive.
In addition to basic registrability issues, one of the biggest impediments to registration of hashtag marks is the difficulty in providing specimens that are sufficient to show the USPTO that the mark functions as a source indicator for the goods and/or services. For example, the mere use of the “#” symbol together with wording on a social media site will not prove “use in commerce” for the goods/services, and instead may be viewed as nothing more than a data tag or a filter to organize users’ comments about the wording following the symbol. Because the hashtag symbol alone is seen as a data tag, the ideal USPTO specimen would not merely show the hashtag mark in a string of text or in the same small font of a text or tweet.
The best hashtag mark trademark specimens show use of the mark in the same manner as any other trademark, e.g., on a label, on a container, or a display associated with the goods; or in the same manner as any other service mark, e.g., in advertising, brochures and webpages where the mark appears in close proximity to the related goods and/or services.
With a little thought and planning upfront, hashtag trademarks can become an important tool in protecting online brand identity.