Can you trademark a hashtag?

In the modern world of social media, hashtags are some of the most powerful indexing tools for tech users to find and access information. With hashtags, users can easily find similar categories of postings (i.e., pictures) on the platform they are searching with.

By including hashtags unique to one’s brand, business owners can improve brand recognition and increase the popularity of the product amongst consumers. Given the tremendous potential benefit that hashtags may yield, you may be wondering if you can file a trademark for a hashtag?

In short, although “a #hashtag alone is a generic symbol with no source-identifying significance, used in conjunction with a product name or campaign tagline it may function in the same way as a trademark and be registerable as such.” (1)

To understand what hashtags can and cannot be trademarked, it is important to first understand the primary function of a trademark. A trademark “is a sign that is capable of distinguishing the goods and services of one company from those of another.” (1) Therefore, a hashtag which cannot distinguish a company’s goods and services would likely not be registrable as a trademark. For example, it is unlikely that the technology company, Apple could obtain a trademark for the hashtag #tablet because such a hashtag would not allow a consumer to distinguish between an iPad Tablet, a Samsung Tablet, or a Kindle tablet. However, Apple could obtain a trademark for #IPad, because such a trademark would allow to a consumer to distinguish an iPad from other tablets.

In addition to unique product names, companies can also obtain hashtags for trademarks pertaining to social media campaigns used to promote their goods. For example, Nike obtained a trademark for their ad campaign #makeitcount. (1) This trademark is permissible because consumers associate the ad campaign directly with the Nike brand and not with other athletic-wear brands.

One important question is can you be sued for trademark infringement if you make a social media post including a trademarked hashtag? In general, so long as you are not impersonating the brand which trademarked the hashtag and are using it to promote “the intended social media message” you will not be held liable for trademark infringement. As an example, say John is making a social media post about his new Nike shoes. If John posts a picture of his shoes to his Instagram page “NIKEMAX” with the hashtag #makeitcount, he could potentially be liable for trademark infringement. If John posts a picture of his shoes to his Instagram page “John.Smith” with the hashtag #makeitcount, John will not be found liable for trademark infringement.

In summary, a hashtag can be a powerful tool for brand recognition in the social media change and can be patented if certain criteria are met.

https://www.wipo.int/wipo_magazine/en/2017/05/

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