{"componentChunkName":"component---src-templates-articles-index-jsx","path":"/articles/are-hashtags-intellectual-property/","result":{"data":{"props":{"adsense":true,"adsenseMobile":null,"byLine":"","canonical":"https://staging.business.com/articles/are-hashtags-intellectual-property/","content":"

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

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

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

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Related Article: #TwitterChat 101: A Lesson in Twitter Marketing

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Can a Hashtag Qualify as Intellectual Property?

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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.

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Trademarks Generally

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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.

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Trademarks serve the dual purpose of:

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  1. Protecting consumers by helping them to identify the original source of a product or service 
    2. \r\n
  2. Incentivizing companies to provide quality products and services
    3. \r\n
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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:

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 \"Hashtag\n

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Image via Socially Aware 

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Related Article: The In-N-Out Effect: Trademark Mistakes You Need to Avoid

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Trademarking Hashtags

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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.

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

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The context in which the hashtag is used

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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.

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The placement of the hashtag

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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).

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How the hashtag is being used can be dispositive

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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.

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

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\"Nike

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Image via Twitter  

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

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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).

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

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Related Article: Apple Vs. Apple: 5 Trademark Cases and What You Should Learn From Them

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Risks & Rewards

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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.

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Taco John

\r\n

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.

\r\n

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. 

\r\n

Fraternity Collection

\r\n

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.

\r\n

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.”

\r\n

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.

\n","docType":"article","guid":"articles_303fad1aba4cf6d2ce4e8d7ba8e2e344","lastModified":"2015-06-19T13:00:00.000Z","published":"2015-06-19T13:00:00.000Z","structuredData":null,"subtitle":null,"template":"v1","title":"Are Hashtags Intellectual Property?","type":"article","author":{"avatar":null,"bio":"Daliah Saper is a Chicago based intellectual property, media, and business attorney that has handled many high profile cases (including one she argued before the Illinois Supreme Court). Daliah is regularly interviewed on national tv, radio, and in several print publications including Fox News, CNBC, ABC News, and The New York Times. She is the recipient of several prestigious awards including a 40 under 40 recognition by Law Bulletin Publishing Company. For the past 5 years, Daliah has served as an Adjunct Professor at Loyola University Chicago School of Law teaching Entertainment Law; she has also taught Internet Law as an Adjunct Professor at the University of Illinois College of Law. As a litigator she handles cases involving trademark and copyright infringement, domain names, trade secret misappropriation, right of publicity, defamation, and commercial disputes. As a transactional lawyer she helps clients choose the right business entity, drafts bylaws and operating agreements, negotiates terms of use, privacy policies, software licenses and other contracts, and provides comprehensive trademark and copyright counseling. Full bio available at: http://saperlaw.com/attorneys/","name":"Daliah Saper","image":null,"slug":null,"social":{"facebook":"https://www.facebook.com/saperlawoffices","linkedin":"https://www.linkedin.com/company/1531826?trk=tyah","twitter":"https://twitter.com/saperlaw","website":"http://www.saperlaw.com"},"status":"enabled","title":null,"type":"Old BDC Member","user":{"imagePath":"https://staging.business.com/images/undefined","profile":{"company":"Christie Communications","jobTitle":"Senior Strategist","website":""}}},"breadcrumbs":null,"channels":{"primary":{"name":"Marketing","slug":"marketing"},"sub":{"name":"Social Media","slug":"social-media"}},"meta":{"robots":"index, follow","description":"Hashtags are a part of many businesses marketing campaigns, but can you trademark a hashtag as intellectual property?","title":"Are Hashtags Intellectual Property? - business.com"},"parsedContent":{"toc":[{"id":"can-a-hashtag-qualify-as-intellectual-property","title":"Can a Hashtag Qualify as Intellectual Property?"},{"id":"trademarks-generally","title":"Trademarks Generally"},{"id":"trademarking-hashtags","title":"Trademarking Hashtags"},{"id":"the-context-in-which-the-hashtag-is-used","title":"The context in which the hashtag is used"},{"id":"the-placement-of-the-hashtag","title":"The placement of the hashtag"},{"id":"how-the-hashtag-is-being-used-can-be-dispositive","title":"How the hashtag is being used can be dispositive"},{"id":"the-types-of-goods-or-services-identified-directly-affects-whether-the-hashtag-is-protectable","title":"The types of goods or services identified directly affects whether the hashtag is protectable"},{"id":"risks-and-rewards","title":"Risks & Rewards"}],"json":[{"component":"p","children":["Hashtags began on Twitter and have now spread to other major social media websites like Facebook, Google+ and Instagram—and to communication in general."]},{"component":"p","children":["Tweets with hashtags elicit ",{"component":"a","props":{"href":"http://linchpinseo.com/infographic-twitter-tweet-cheat-sheet?doing_wp_cron=1432709411.8123350143432617187500","target":"_blank","rel":"nofollow"},"children":["double the engagement"]}," of tweets without hashtags, so it is important to incorporate hashtags into your business and marketing strategies."]},{"component":"p","children":["But how do you protect a hashtag? What is the legal mechanism to do so?"]},{"component":"p","children":[{"component":"em","children":["Related Article: "]},{"component":"Link","props":{"href":"http://www.business.com/social-media-marketing/twitter-chat-101-lesson-twitter-marketing-infographic/"},"children":["#TwitterChat 101: A Lesson in Twitter Marketing"]}]},{"component":"h2","props":{"id":"can-a-hashtag-qualify-as-intellectual-property"},"children":[{"component":"em","children":["Can a Hashtag Qualify as Intellectual Property?"]}]},{"component":"p","children":["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."]},{"component":"h2","props":{"id":"trademarks-generally"},"children":[{"component":"em","children":["Trademarks Generally"]}]},{"component":"p","children":["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."]},{"component":"p","children":["Trademarks serve the dual purpose of:"]},{"component":"ol","children":[{"component":"li","children":["Protecting consumers by helping them to identify the original source of a product or service "]},{"component":"li","children":["Incentivizing companies to provide quality products and services"]}]},{"component":"p","children":["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:"]},{"component":"ul","children":[{"component":"li","children":["Nation-wide priority and privilege to exclusively use this mark in relation to the product or service for which it was registered"]},{"component":"li","children":["National notification and notice"]},{"component":"li","children":["Inclusion in USPTO trademark searches"]},{"component":"li","children":["Use of the ® symbol"]},{"component":"li","children":["Legal presumption of ownership and exclusive rights"]},{"component":"li","children":["Incontestable status after five years of registration"]},{"component":"li","children":["Increased domain name protection"]},{"component":"li","children":["Facilitated foreign trademark registration in over 50 countries via the Madrid Protocol"]},{"component":"li","children":["The ability to register with U.S. Customs to stop the importation of counterfeit and confusingly similar goods"]},{"component":"li","children":["Monetary remedies, including infringer’s profits, damages, costs, and sometimes, treble damages and attorney’s fee"]}]},{"component":"h3","props":{"style":{"textAlign":"center"}},"children":[" ",{"component":"em","children":[{"component":"img","props":{"className":"aligncenter med","src":"/images/content/558/303173087b185238b457d/Hashtag_Sign.206by229.png","sizes":"(min-width: 870px) 412px, (min-width: 400px) 38vw, 62%","srcSet":"/images/content/558/303173087b185238b457d/Hashtag_Sign.742by826.png 742w, /images/content/558/303173087b185238b457d/Hashtag_Sign.412by458.png 412w, /images/content/558/303173087b185238b457d/Hashtag_Sign.206by229.png 206w","alt":"Hashtag Sign; Socially Aware","width":"206","height":"229","data-content-img-id":"558303173087b185238b457d"}}]}]},{"component":"p","props":{"style":{"textAlign":"center"}},"children":[{"component":"i","children":["Image via ",{"component":"a","props":{"href":"http://www.sociallyawareblog.com/2015/05/13/trademarks-hashtags-as-trademarks/","target":"_blank","rel":"nofollow"},"children":["Socially Aware"]}]}," "]},{"component":"p","props":{"style":{"textAlign":"left"}},"children":[{"component":"em","children":["Related Article: "]},{"component":"Link","props":{"href":"http://www.business.com/legal/4-trademark-mistakes-you-need-to-avoid/"},"children":["The In-N-Out Effect: Trademark Mistakes You Need to Avoid"]}]},{"component":"h2","props":{"id":"trademarking-hashtags"},"children":[{"component":"em","children":["Trademarking Hashtags"]}]},{"component":"p","children":["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."]},{"component":"p","children":["The USPTO considers the following factors in deciding whether to register a hashtag:"]},{"component":"ul","children":[{"component":"li","children":["Context"]},{"component":"li","children":["Placement of the hash symbol in the mark"]},{"component":"li","children":["How the hashtag is being used"]},{"component":"li","children":["Types of goods or services identified"]}]},{"component":"h2","props":{"id":"the-context-in-which-the-hashtag-is-used"},"children":[{"component":"em","children":["The context in which the hashtag is used"]}]},{"component":"p","children":["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."]},{"component":"h2","props":{"id":"the-placement-of-the-hashtag"},"children":[{"component":"em","children":["The placement of the hashtag"]}]},{"component":"p","children":["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)."]},{"component":"h2","props":{"id":"how-the-hashtag-is-being-used-can-be-dispositive"},"children":[{"component":"em","children":["How the hashtag is being used can be dispositive"]}]},{"component":"p","children":["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."]},{"component":"p","children":["The hashtag must be used like any other trademark: to identify the source of a good or service."]},{"component":"p","children":[{"component":"img","props":{"className":"aligncenter full","src":"/images/content/558/304f93187b1de128b457c/Nike_JustDoIt.320by141.png","sizes":"668px, 100%","srcSet":"/images/content/558/304f93187b1de128b457c/Nike_JustDoIt.1200by531.png 1200w, /images/content/558/304f93187b1de128b457c/Nike_JustDoIt.668by295.png 668w, /images/content/558/304f93187b1de128b457c/Nike_JustDoIt.320by141.png 320w","alt":"Nike Just Do It; Twitter","width":"320","height":"141","data-content-img-id":"558304f93187b1de128b457c"}}]},{"component":"p","props":{"style":{"textAlign":"center"}},"children":[{"component":"i","children":["Image via ",{"component":"a","props":{"href":"https://twitter.com/nike/status/369858464430178304?lang=en","target":"_blank","rel":"nofollow"},"children":["Twitter"]}]},{"component":"a","props":{"href":"https://twitter.com/nike/status/369858464430178304?lang=en","target":"_blank","rel":"nofollow"},"children":["  "]}]},{"component":"h2","props":{"id":"the-types-of-goods-or-services-identified-directly-affects-whether-the-hashtag-is-protectable"},"children":[{"component":"em","children":["The types of goods or services identified directly affects whether the hashtag is protectable"]}]},{"component":"p","children":["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)."]},{"component":"p","children":["In short, hashtags must follow the same trademark rules as words and symbols—they must signify a specific source of goods or services."]},{"component":"p","children":[{"component":"em","children":["Related Article: "]},{"component":"Link","props":{"href":"http://www.business.com/legal/5-trademark-cases-and-what-you-should-learn-from-them/"},"children":["Apple Vs. Apple: 5 Trademark Cases and What You Should Learn From Them"]}]},{"component":"h2","props":{"id":"risks-and-rewards"},"children":[{"component":"em","children":["Risks & Rewards"]}]},{"component":"p","children":["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."]},{"component":"h4","children":[{"component":"em","children":["Taco John"]}]},{"component":"p","children":["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 “",{"component":"a","props":{"href":"https://www.techdirt.com/articles/20100803/10532810480.shtml","target":"_blank","rel":"nofollow"},"children":["Taco Tuesday"]},"” and sent a cease desist letter to Iguana Grill for its use of #tacotuesday for their own promotion efforts."]},{"component":"p","children":["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. "]},{"component":"h4","children":[{"component":"em","children":["Fraternity Collection"]}]},{"component":"p","children":["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 ",{"component":"a","props":{"href":"http://tushnet.blogspot.com/2015/04/court-declines-to-dismiss-hashtag.html","target":"_blank","rel":"nofollow"},"children":["Fraternity Collection"]}," brought trademark infringement claims against a former designer based on use of the (unregistered) trademark hashtags #fratcollection and #fraternitycollection."]},{"component":"p","children":["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.”"]},{"component":"p","children":["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."]}]},"resource":null,"sponsorship":null,"thumbnail":{"path":"https://staging.business.com/images/content/5d0/cfb325a215e30628b456d/1500-0-","caption":"AngieYeoh/Shutterstock","isBlurred":false},"bestPicks":null},"related":{"relatedArticles":[{"title":"Are Hashtags Intellectual Property?","canonical":"https://www.business.com/articles/are-hashtags-intellectual-property/","slug":"are-hashtags-intellectual-property","thumbnail":"https://www.business.com/images/content/5d0/cfb325a215e30628b456d/1500-0-","dek":"Hashtags began on Twitter and have now spread to other major social media websites like Facebook, Google+ and Instagram—and to communication in general.","lastModified":"2015-06-19T13:00:00Z","published":"2015-06-19T13:00:00Z","sponsored":false},{"title":"Can You Expedite a Trademark Application?","canonical":"https://www.business.com/articles/can-you-expedite-a-trademark-application/","slug":"can-you-expedite-a-trademark-application","thumbnail":"https://www.business.com/images/content/5e8/dce245a215e34118b4599/1500-0-","dek":"Trademark applications can take eight to 12 months to process. 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