Are Hashtags Intellectual Property?

Hashtags began on Twitter and have now spread to other major social media websites like Facebook, Google+ and Instagram—and to communication in general.

Tweets with hashtags elicit double the engagement of tweets without hashtags, so it is important to incorporate hashtags into your business and marketing strategies.

But how do you protect a hashtag? What is the legal mechanism to do so?

Can a Hashtag Qualify as Intellectual Property?

Since hashtags are not ideas or inventions subject to patent protection, and are too short to qualify for copyright protection, your best bet for securing rights to #thisisawesome is through trademark protection.

Trademarks Generally

A trademark is any word, phrase, symbol, design or any combination thereof, used to distinguish the products or services of one person or organization from those of another.

Trademarks serve the dual purpose of:

Protecting consumers by helping them to identify the original source of a product or service
Incentivizing companies to provide quality products and services

A trademark owner has the exclusive right to use its mark nationwide in connection with its particular goods or services. While in the United States trademark rights are based on use, federal registration significantly enhances those rights. A registered trademark owner enjoys the following benefits:

Nation-wide priority and privilege to exclusively use this mark in relation to the product or service for which it was registered
National notification and notice
Inclusion in USPTO trademark searches
Use of the ® symbol
Legal presumption of ownership and exclusive rights
Incontestable status after five years of registration
Increased domain name protection
Facilitated foreign trademark registration in over 50 countries via the Madrid Protocol
The ability to register with U.S. Customs to stop the importation of counterfeit and confusingly similar goods
Monetary remedies, including infringer’s profits, damages, costs, and sometimes, treble damages and attorney’s fee

Image via Socially Aware

Trademarking Hashtags

The U.S. Patent and Trademark Office (USPTO) defines a hashtag as a form of metadata comprised of a word or phrase prefixed with the symbol “#” (e.g. #Chicago, #SCOTUS). These forms are often used on social media websites to identify or facilitate a search for a keyword or topic of interest.

The USPTO considers the following factors in deciding whether to register a hashtag:

Context
Placement of the hash symbol in the mark
How the hashtag is being used
Types of goods or services identified

The context in which the hashtag is used

For example, one company tried to register the hashtag #SEWFUN for instruction in the field of sewing. However, the company only used the mark in a social media—namely, on Twitter to organize users’ comments about sewing classes. The USPTO refused registration of the hash tag, finding that the hashtag failed to function as a trademark.

The placement of the hashtag

Used before a number (such as "#9"), the hashtag will be viewed as meaning “number nine” instead of “hashtag nine.” Also, if the hashtag symbol is separable from the other part of the hashtag, the company will likely have to disclaim the symbol (“# INGENUITY” for business consultation services had to disclaim or not claim rights to the hashtag symbol).

How the hashtag is being used can be dispositive

Used to reference a company’s social media campaign or to index a social media message, the hashtag is not protectable. Just because a company uses a hashtag in its social media or advertising material does not mean it warrants trademark protection.

The hashtag must be used like any other trademark: to identify the source of a good or service.

Nike Just Do It; Twitter

Image via Twitter

The types of goods or services identified directly affects whether the hashtag is protectable

The hashtag cannot merely describe or generically identify the underlying goods or services. For example, using the hashtags “#coffee” for a coffee shop does not identify the source of the coffee but merely identifies the relevant product class. On the other hand, “#Starbucks” signifies a specific source of coffee. Similarly, Nike's slogan "Just Do It" is still considered a trademark when it is hashtagged (#JustDoIt).

In short, hashtags must follow the same trademark rules as words and symbols—they must signify a specific source of goods or services.

Risks & Rewards

It is important for companies to consider the amount of time the hashtag will be valuable to the company. Barring any substantive refusals, it usually takes between six to eight months for a mark to be registered. It is likely not worth pursuing registration for hashtags with a short-term use.

Taco John

Companies should also consider the risks in enforcing a hashtag trademark. In 2010, a chain of Mexican restaurants called Taco John’s relied on its federal registration for “Taco Tuesday” and sent a cease desist letter to Iguana Grill for its use of #tacotuesday for their own promotion efforts.

Although Iguana Grill stopped using the mark, Taco John’s forceful protection of their mark generated considerable and detrimental public criticism of their company while providing free media and marketing buzz for Iguana Grill.

Fraternity Collection

Despite such risks, hashtags have legal clout. In March of 2015, a court ruled that a hashtag could contribute to consumer confusion. In this case (Fraternity Collection, LLC v. Fargnoli), a clothing maker called Fraternity Collection brought trademark infringement claims against a former designer based on use of the (unregistered) trademark hashtags #fratcollection and #fraternitycollection.

The designer worked on a clothing line for Fraternity Collection before leaving to work for a competitor where she used the hashtags above to market her new business endeavors. The court said that “the notion that hashtagging a competitor’s name or product in social media posts could, in certain circumstances, deceive consumers.”

In sum, trademarking a hashtag may be a smart business move, however, many unique factors must be considered before making the investment. If you are not certain whether the hashtag will function as a trademark for your next hashtag campaign, the safest best is to #AskYourLawyer.