Can You Trademark A Hashtag?

As part of our “Can You Trademark” series, we will look at a wide range of topics that entrepreneurs and businesses may be interested in obtaining a federal trademark registration for. This series is merely designed as a broad overview of if it is possible to trademark the topic for the blog. To suggest our next topic, tweet @nextrendlegal, or post to our Facebook wall with a topic you would like to know if it is possible to trademark!

With recent news regarding reality star Kris Jenner seeking a federal trademark registration for #ProudMama, we wanted to kick start our “Can You Trademark” series with a look at whether you can trademark a hashtag (#).

Hashtags are generally used in social media as a system to tag the topic of a social media post. This practice is mostly associated with an individual’s Twitter account, in order to quickly communicate the topic of any given “Tweet.” In order to gain federal trademark protection, any word, symbol, phrase, or design must be used in commerce and be able to identify a single source of the goods or services used in connection with the mark. Because a hashtag’s main purpose is to facilitate categorization of topics and searching conducted through social media, a hashtag on its own does not function as a source identifier. However, if a hashtag functions as an identifier of the source of an applicant’s goods, then that hashtag can be registered as a federal trademark, as long as the mark as a whole is not considered a generic trademark  or a merely descriptive trademark.

When thinking about trademark protection of a hashtag, simply using the “#” to reference a marketing campaign or index a message placed on social media, will not work to warrant trademark protection. The hashtagged term must but used as identifying a source of goods or services. For example, “#coffee” will not be protectable for a coffee shop, as the term is a generic term. However, “#starbucks” is a distinctive term which identifies a source, and would be eligible for trademark registration.

If you or your business has a hashtag, or you are looking at obtaining trademark rights of a hashtag, contact our trademark law firm and let us help determine if your hashtag is eligible for #TrademarkRegistration.