The Battle Over Hashtags: Choose Wisely If You Want To Trademark Your Own

12 September 2016
 Categories: Law, Blog

Many businesses and individuals learned from the Rio Olympics that hashtags are now being trademarked in the same way domain names and logos are trademarked. The rules from the International Olympic Committee were so strict during the 2016 event that only media were "allowed" to use certain hashtags that contained common phrases and terms related to the global sporting contest.

Other firms are moving to protect their business names, slogans, and other brand-identifying hashtags with trademark registration. But the rules can be interpreted in as arbitrary a manner as the rules governing domain names. Here's what you should do to ensure your hashtag registration application will be accepted:

The hashtag must show a serious association with your brand

Whether you claim exclusive use of a hashtag phrase because it's used in your advertising or because it's featured prominently on your product packaging, you must show in your application that you have proof of said use for a reasonable period of time. You must show investment made in creating and marketing the business name or saying. The more specific the saying to your brand, the better.  

As your company develops new hashtags and marketing campaigns, be sure you keep diligent notes on the who, what, where, why, and how your hashtags came to be. Be prepared to present examples of how and why customers and others in the public associate a certain hashtag with your business, and be ready to explain why your company may be harmed and customers may become confused if others use your hashtag.

Make sure your application reflects consent agreement language

Even if you have a consent agreement from another interest to use their brand name or other protected words or phrases in your potential registered hashtags, you need to be sure the terms of that agreement are noted in your trademark application. For example, the consent agreement to use another party's protected brand names or other words in your hashtags may include restrictions. These consent-agreement limitations may spell out how you may post a protected saying or word in a hashtag, so the original company's image is not confused with yours, and so sales territory is not overlapped. 

If your application to register "their" word or phrase in your own hashtags does not show the limitations required by the consenting company, your application will be rejected. The consent agreement alone is not proof that the consenting firm will be protected from your unfair use. Be precise on your application when describing the limitations to which both parties consented.

The trademarking of hashtags is only growing. In 2010, fewer than ten hashtag trademark applications were filed. Five years later, over 1,398 applications were made. A new rush to grab up hashtags may occur as the United States Patent and Trademark Office shows more consistency in how it awards trademarked status to catchphrases and taglines used in social media. Protect your hashtags while you can by contacting an experienced patent and trademark attorney.