Can I trademark this? – #Hashtags

27 Jan 2016

The use of hashtags in social media has become second nature and is certainly a trend that will not die down any time soon. Not only is it a way in which individuals and companies advertise and promote their businesses and brands, but it has become so popular that it is being used in starting trends, raising awareness, buying and selling products and services, entering competitions and winning prizes, which leads to the question – can I protect and register my hashtag? #isthispossible?

The Merriam-Webster Dictionary has defined the word ‘hashtag’ as ‘a word or phrase preceded by the symbol # that classifies or categorizes the accompanying text’. The use of hashtags therefore makes it a lot simpler when one would like to view something specific that people have tweeted, used on Instagram or on many other forms of social media.

Just as any form of Intellectual Property, one could indeed protect this type of product of human intellect. A company can prevent competitors from using the same or similar hashtags by merely registering their hashtag. #GetIt? By registering this trademark, one can prevent consumer confusion and protect your reputation.

There has been a rather adventurous applicant who attempted to register the word ‘hashtag’ as a trademark which would be used in broadcasting, entertainment and television advertising. The United States Patent and Trademark Office (“USPTO”) did not accept this application because it was merely describing the applicant’s services and the term is widely used by many other individuals. The USPTO has stated that one can register a hashtag, but only if it functions as an identifier of the source of the applicant’s goods or services. An example of this could be the registration of #innovation in the Recruitment Agency field, however, one cannot register #fryer for a frying pan or #corker for a corkscrew as this is not distinctive but merely descriptive and generic. For registration purposes one would need to provide evidence of the use of the mark in association with the relevant goods or services.

Interestingly enough, the trademark #HASHTAG was registered in South Africa in 2014 for goods/services related to fashion apparel and accessory labels.

All these hashtags are effective marketing tools and they serve a functional purpose. In order to determine whether there is possible infringement of a trademark, one would consider whether the likelihood of confusion exists. The purpose of registration and protection is to promote distinctiveness and prevent other individuals from taking advantage of this distinctiveness.

Examples of other hashtags registered as trademarks to date include Coca-Cola’s #cokecanpics and #smilewithacoke. A chain of Mexican restaurants known as Taco John’s successfully stopped their competitor, Iguana Grill, from using #tacotuesdayas Taco John’s had registered this hashtag as their mark. Other examples include #FINISHIT used for anti-smoking advertisements and #GOHARD for clothing.

In conclusion, before registering a hashtag as a trademark, a company or individual should consider whether they intend to use the specific hashtag over a long period of time and therefore whether it is actually worth spending time, finances and resources to protect it. #ThinkBeforeRegistering.

See also: #FillUp – A perfect example of why a trade mark should be registered

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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