Organically created by Twitter users to categorize messages, hashtags have become popular to mark keywords or topics for easy searchability on social media and beyond. Last year, half the Superbowl ads featured hashtags, While many companies use their trademarks and service marks in hashtags, can a hashtag itself be protected as a federally registered mark?
In October, 2013, the U.S. Patent and Trademark Office (USPTO) added a section to its Trademark Manual of Examination Procedure discussing the inclusion of hashtags in submitted applications. From this, it is clear that adding a hashtag to an unregistrable mark doesn’t make it registrable. Also, the nature of a generic or descriptive word doesn’t change from the addition of a hashtag. But if a hashtag itself is used as a source identifier for a product or service, it may be approved for registration.
There has been trademark litigation over the use of certain hashtags. Reccently, clothing designer Fraternity Collection filed a trademark infringement case over a third party’s use of the hashtags #fratcollection and #fraternitycollection. The case survived a motion to dismiss.
Access the USPTO’s discussion of hashtags here and view the Fraternity Collection order here. Contact us at Ossian Law regarding any information technology law matter.