How It’s Possible to Trademark a Hashtag, and Why it Could Lead to Mass Litigation

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How It’s Possible to Trademark a HashtagThe hashtag has become such a cultural icon that it’s amazing it hasn’t canceled its own self out. Some signs are already starting to emerge of that happening based on rumors of Twitter perhaps doing away with the hashtag in the near future. While others might be skeptical this may ever really happen, the hashtag will still exist regardless of being used on Twitter. That’s a result of numerous companies already taking on the hashtag as a serious part of their branding campaigns.

Because of this more serious approach to the hashtag, companies are starting to treat it as a part of their intellectual property. And they’re legally right to consider this when you consider many hashtags are business names or catchphrases that make up a brand. While there may be some legal arguments about what makes up a business catchphrase from a standard hashtag phrase, the point is creating something unique that isn’t commonly used.

Through this line of thinking, companies are now trademarking their hashtags. Forbes reports that hundreds of trademark applications on unique hashtags are already waiting for approval from the U.S. Trademark Office. With likely hundreds more in another year, is the hashtag heading for a collision course with hundreds of trademark infringements? With so many hashtags already being used for marketing purposes on Twitter and Facebook, what are the chances of someone using the same business name or catchphrase down the line?

The Threat of Creative Cacophony

There isn’t a doubt that we’re living in one of the most fertile creative eras in history thanks to digital tools making creativity so much easier. Whatever you think is original in the moment will probably involve dozens if not hundreds of people inventing the very same thing somewhere in the world. While combinations of words are seemingly infinite, hashtag phrases have already overlapped on Twitter. What happens if your business unknowingly uses a catchphrase you think is original and you find out later it’s trademarked?

Eventually, it’s going to have to be common practice to go on the U.S. Trademark Office site and check to make sure a hashtag isn’t already protected. Regardless, that’s going to take time with many people in the immediate term not even knowing this is occurring. It could lead to multiple trademark infringement cases that clog up the courts for years. Or, it could even lead to as much chaos as the new patent laws have in the last couple of years where whomever patents first gets the credit.

If you’ve been using a hashtag recently for marketing purposes, should you really trademark it to protect yourself? First, you should study how often you’re using it and where it’s been used.

The Ubiquitous Nature of Hashtags

So many companies are starting to place hashtags on their own products, let alone in commercials and other marketing items. It really isn’t just a social media tool any more and it’s being used as much in the outside world as the internal online world. Assuming your company has been using a hashtag this way for a while, you’re already ahead of the game since you’ve been using it for commerce. Chances are you’ll be successful at obtaining a trademark and be able to protect it from being used by anyone else.

The real decision is whether you’ll want to pursue people using it for profit when litigation will cost you more than any damage compensation you may get back. Businesses may have to be very judicious on what they think is true infringement since the hashtag is likely going to be hanging around for many more years. Until it’s common knowledge that hashtags are being protected as intellectual property, you should only scope out those who are trying to profit willfully rather than accidentally.

In the meantime, all those hashtags you create to emphasize irony in your tweets might be inadvertently promoting a business’s catchphrase without you knowing it. Companies can only hope that happens as a sense of fun rather than the hashtag becoming an easily compromised business tool.



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