#Trademarks

Let’s talk about hashtags. Can I register one as a trademark? Do they even work as a trademark? What should I do? #help

Believe it or not, the USPTO actually has guidance on hashtag marks – section 1202.18 of the Trademark Manual of Examining Procedure (or “TMEP”), if you’re curious. #blessed

Trademarks are identifiers of the source of goods or services. They’re adjectives: Nike sneakers, Skullcandy headphones, Jif peanut butter, etc. That is why “descriptive” or “generic” marks are considered “weak” as trademarks: they identify the product, not the source. To that end, marks containing the word “hashtag” or the “#” symbol are only registrable as a trademark if they can serve to identify the source of goods or services. #foundationsoftrademarklaw

What this means is that, generally, the words following “hashtag” or “#” have to be registrable as a trademark. Here are a couple of examples of registered hashtag marks from the USPTO: #VISIONISCOOL (optometry and ophthalmology services);  #WERUNTOGETHER (charitable fundraising and athletic event promotion); #WHITEANDWOKE (clothes); #INSTAREADY (cosmetics); #GOBOWLSDEEP (juice bar).

“Hashtag” or “#” by itself typically does not function as a trademark unless it is distinctly stylized or designed, or if the goods and services are not related to social networking. For example:

(For accounting and financial services)

(For accounting and financial services)

(For downloadable content sharing app—all I know is that his name is “Hashtaggy” and there’s no way I  wasn’t  going to include him)

(For downloadable content sharing app—all I know is that his name is “Hashtaggy” and there’s no way I wasn’t going to include him)

Because the practical function of a hashtag is to make data searchable on a social network, applying to register a hashtag mark used in connection with any social networking or related services will likely result in a refusal by the USPTO on the basis of “mere descriptiveness” (also known as a “§ 2(e)(1) refusal”). Moreover, adding “hashtag” or “#” to an otherwise unregistrable mark will not make it registrable. #realitycheck

Sometimes the USPTO will also ask applicants to disclaim the “hashtag” or “#” portion of the mark, meaning that applicants cannot claim the exclusive right to use that part of the mark. #noclaimismadetotheexclusiverighttousehashtagapartfromthemarkasshown

In short, hashtag marks can function as trademarks and can potentially be registered at the USPTO.  Personally, given that technology changes so frequently and that social networks come and go along with it, I wonder if registering hashtag marks is worth the expense. I would venture a guess that in 5-10 years, Twitter and Instagram will be replaced by yet another service, possibly one not using hashtags, and when those hashtag marks are up for renewal at the USPTO, the $300+ per class maintenance fees won’t be #worthit.