With technological advances and innovations occurring at such a relentless pace, it is sometimes hard for the law to keep up. This can cause confusion and frustration for you and your clients. Nontraditional trademarks such as digital-only materials can be particularly problematic. These fulfill the necessary function of identifying the source of your client’s goods or services, but they can be difficult to register because they do not fit into a pre-existing category.
Once simply a convenient way to categorize similar online content, the hashtag has become a powerful marketing tool for helping businesses and customers connect with one another. Your client may want to trademark a hashtag to prevent competitors from co-opting and using it, confusing customers in the process. Registering a trademark for a hashtag is possible, but only under certain circumstances.
For a hashtag to be trademarkable, it has to be specifically recognizable and identifiable with your client’s company and the goods or services it offers. The U.S. Patent and Trademark Office has rejected applications to register hashtags that are too general or merely descriptive. The following are examples of hashtags rejected for registration on the basis of genericness:
- Hashtag Records
With that said, a hashtag does not have to contain the company name to be sufficiently specific. For example, the USPTO granted the request of a pharmaceutical company that makes cold and flu medications to register the hashtag “#BlameMucus” and allowed a manufacturer of shutter releases, a type of photography and videography equipment, to trademark “#TheSelfie.”
The placement of the hash symbol, known as a number sign or a pound sign in other contexts, affects the ability to trademark the entire word or phrase. If it is clear from the context that the mark is functioning as a pound sign or a number sign, e.g., it comes at the end or in the middle rather than at the beginning, it is not trademarkable. The USPTO also does not approve registration applications for hashtags if the symbol appears directly in front of a numerical figure. In this case, it could simply designate a number rather than forming a usable hashtag.