Can you protect hashtag as trademark?

Have you ever found yourself typing hashtag during conversation? You are not the only one. Since emerging in 2007, hashtags have become ubiquitous. In the age of social commerce hashtags can boost consumer engagement with your business with openness and content sharing.

Hashtag is an effective marketing tool which can help steer up conversations on social media and it can help promote brands, events, campaigns etc. But can they be protected as a trademark? Trademark is any word, symbol, phrase or any combination thereof that helps consumers recognize the source of a product or service. It also encourages companies to provide quality products or services.  United States Patent and Trademark office shared in their guidance that hashtag, as a generic symbol, combined with brand tagline or product can be registerable as trademark in only if you can identify the source behind the trademark. If you want to protect hashtag as trademark, you should ask yourself for how long will the hashtag be valuable to the company.

There have been contradicting court decisions in US whether hashtag can be protected as trademark. In case Fraternity Collection, LLC v Fargnoli court ruled that using hashtag with competitor’s name or product could deceive consumers. However, case Eksouzian v. Albanese the court ruled that use hashtag Is merely a functional tool for search, organization or self-expression on social media and not an actual trademark.  In UK hashtag is registerable if it has distinctive character and if has the capacity to individualize the goods and services. In UK, Wyke Farms was the first to register a hashtag (#freecheesefriday) as trademark in 2014.

Hashtag inventor Chris Messina doesn’t agree that hashtags should be protected as trademark. He stated:

“1. Claiming a government-granted monopoly on the use of hashtags would have likely inhibited their adoption, which was the antithesis of what I was hoping for, which was broad-based adoption and support — across networks and mediums;

2. I had no interest in making money (directly) off hashtags. They are born of the Internet, and should be owned by no one.”(2017)[1]

Is there little less freedom on internet because hashtags can be protected as trademark? Should you worry about every hashtag that you use on social media?

So, what actually happens if you use brand’s hashtag trademark on social media? If you are simply using hashtag for social media message, without making confusion, associating the message with the trademark owner or suggesting there is a link or connection with the trademark owner, then there are no grounds for infringement (James, 2017)[2]

Hashtags can be powerful influence tool and their protection can mean a valuable asset.

Do you already have your mind on hashtag that you want to protect or….Do you think they should not be protected at all?

VIR

JONES, C., 2017. Hashtag trademarks: what can be protected. Wipo magazine. Pridobljeno z: https://www.wipo.int/wipo_magazine/en/2017/05/article_0009.html

2017, #Hastags as Intellectual Property, Kass the IP experts. Pridobljeno z : http://www.kass.com.my/articles/hashtags-intellectual-property/