Trademark a hashtag? Yes, it is possible. Is your brand @Twitter or @Facebook? Do you have a slogan or brand name being used as #hashtag? Then it may be time consider how to trademark a hashtag. The trademark world is @twitter about registering hashtags as federal trademarks. For some brands it makes a lot of sense.
Long ago and far away, in the pre-Twitter days, what did the word “hashtag” mean anyway? It was slang for the “pound” or “number” sign on the typewriter. Thanks to social media, and specifically Twitter, there’s an entirely new meaning, one found in trademark regulations Examiners use to review an application.
A “hashtag” is a form of metadata comprised of a word or phrase prefixed with the symbol “#”. Hashtags are often used in social-networking sites to identify or facilitate a search for a keyword or topic of interest. Dictionary.com, search of http://dictionary.reference.com/browse/hashtag
At last count, there were over 950 pending applications for trademarks for #hashtags. Some will become registered trademarks, others won’t.
Let’s review how to trademark a hashtag
Should you seek to trademark a hashtag, and what does it take to successfully register? Here’s what you need to know to successfully register a #hashtag as a federal trademark.
1. The term must be registerable as a trademark without the hashtag
Descriptive and generic terms are not registerable as trademarks. Before choosing any trademark, make sure it’s not descriptive of the goods or services you are promoting. View: How to Choose a Good Trademark.
Examples of hashtags that are descriptive and not registerable:
#SKATER for skateboard equipment
#THESELFIE for remote shutter releases
#THESELFIE involved an application that was rejected by the Examiner. The brand owner’s attorney submitted an impressive, but unpersuasive argument to Examiner who held that “selfie” is descriptive when applied to a camera shutter. The applicant gave in and ended up on the Supplemental Register. Although it did trademark a hashtag, it is now in trademark purgatory, sentenced to Read: Rehab for Bad Brands.
Examples of distinctive hashtags or twitter handles that are registered:
#FINISHIT for anti-smoking advertisements in all forms of media.
Great trademark! Why, because it can be read two ways, though the stylization of the lettering focuses the viewer to read “finish it. It’s one word with no space.
#DIVASONLY for live music performances
@hand Indigo for software for use by remote workers in field service management
This is another terrific trademark since the Twitter handle @hand suggests what the user needs is “at hand” but there is no description of any element of the function of the software.
#GOHARD for clothing
In both the #FINISHIT and #GOHARD examples, the owners included a graphic element as part of the application. In these cases, the graphic element was a plus as it forced the owners to establish use of the hashtag to submit other than examples that show up in the Twitter news feed with no branding.
2. Avoid a requirement to disclaim the “#” symbol
The Trademark Office has an odd rule about marks that comprise a “unitary whole,” a portion of which includes a generic or non-source identifying element (such as .com). If the “#” sign or “@” has a space (is separate from the word being registered, a disclaimer is required. If it’s one word, none is required.
Examples:
ABC bank.com – Bank.com must be disclaimed
ABCBANK.com – No disclaimer
#INGENUITY for business consultation services – # must be disclaimed
#SLUGGERTIME for clothing – No disclaimer required
3. Submit proper evidence of trademark use
A common big pitfall in registering any brand name is the failure to establish proper trademark use in marketing and advertising before submitting an application. This will be equally true for those seeking to register a #Hashtag as #trademark. Don’t bother to submit samples in support of registration that merely show the hashtag used as a tag used to reference or organize keywords or topics of information to facilitate searching a topic. These uses are not promoting goods or services to the public. Your samples must show you are promoting goods or services with the Hashtag.
If you need help with trademark registration, contact me @cherylhodgson (not a registered trademark).
