#OwningTheConversion – How To Trademark A Hashtag For Your Business
In recent years, the question that I am asked over and over again when it comes to trademarks and ownership is — can I trademark my hashtag? I used to say no (unless it fell into a specialized category) for a good reason. But with the evolution of hashtags on the internet, I now give the standard lawyer answer of “it depends.” Here’s why.
Hashtag Evolution
When social media exploded in the early 2000s, no one knew it’s potential. But as time wore on, it seems like everyone realized that they had the power to create and monetize content at the same time. So much so that people began to blog, vlog, post, and tweet all the time. In fact, a recent study indicates that users upload an average of 95 million photos to Instagram every day. And that’s just on one platform.
Originally hashtags started on Twitter. They were used as a way to categorize conversations on a particular topic, not unlike an online folder. Users were able to follow or add their own content to a discussion on a specific topic by following that hashtag. And the term hashtag itself is really just shorthand for words or phrases that follow the pound or hash sign (“#”).
But hashtags have evolved. They are no longer used solely as online folders for conversations. They are used to identify movements, brands, and products. #metoo #blacklivesmatter #blackgirlmagic And this is where trademark law applies. Let’s start with the basics.
What is a Trademark?
A trademark or mark is a word, letter, number, design, or combination that serves as the source-identifying function for a producer’s goods or services. These marks and logos distinguish a producer from its competitors. By using a trademark, consumers know who is producing the products or services they are purchasing. And anyone that tries to pass themselves off as you by using your trademark is guilty of trademark infringement.
Why are trademarks important?
With trademark rights, the money-generating asset lies in trademark goodwill. When customers like your products or services, and you use a mark or logo to represent them, people begin to associate that good reputation with your trademark. That’s goodwill, and it is valuable.
Goodwill is the reason a black leather handbag with a JCrew logo might cost a few hundred dollars while the same black leather bag with a Louis Vuitton logo costs a few thousand dollars. The goodwill associated with the Louis Vuitton brand and trademark commands a higher price even if the handbags are made in the same factory with the same materials.
Can All Words or Phrases Receive Trademark Protection?
The short answer to that is no. When a company registers its trademark, the law provides levels of protection based on where a brand name falls along the spectrum of distinctiveness. The spectrum is divided into five categories – arbitrary, fanciful, suggestive, descriptive, and generic.
Fanciful words are made up like Google or Pepsi. Arbitrary marks are real words that are used in unique ways such as Amazon or Virgin. Suggestive marks use words that suggest a quality or characteristic of the goods or services like Chicken of the Sea. These 3 categories of words receive the highest trademark protection.
Descriptive trademarks describe the produce or service itself. While generic marks refer to a general category of goods or services such as furniture or t-shirts. These types of marks cannot receive trademark protection unless they become famous or acquire a secondary meaning. Some examples of famous descriptive terms would be Beyonce, the New York Times, and the Chicago Tribune.
Hashtags and Trademarks
In its original form as an online folder of sorts, a hashtag could not receive trademark protection because the terms were generic and did not identify a source of goods or services. But increasingly businesses are using trademarks to distinguish their brands or products. When this happens, the hashtag serves to identify a producer and becomes registerable as long as it meets specific requirements.
So to be registerable, a hashtag must:
- “functions as an identifier of the source of the [trademark] applicant’s goods or services,” just like any other word, phrase or logo seeking trademark protection, and
- combine the hashmark with an arbitrary or suggestive words and phrases.
Hashtags that are made of descriptive or generic phrases cannot receive trademark protection under the law. So use #blackgirlmagic until your heart is content.
And there you have it. The reason for my partial about-face on the hashtag issue. And what you can do to own a hashtag for your business.
Now I’d like to hear fro you. What are your thoughts, questions, or comments on online business and trademark protection? Let me know in the comments below.