Twitter, Instagram, and Facebook have made hashtags a household name. The question, however, is whether or not hashtags are protected by trademark law. In response, the U.S. Patent & Trademark Office has issued explicit guidance on the standard for hashtag registrations. In general, a person or business can trademark a hashtag if it functions as an identifier of the goods or services of the person or business.
Trademark protection serves to prevent companies and service providers within the same industry from using your hashtag to compete with you. For example, if Joe Cheddar owned a restaurant, he would not be able to trademark the hashtag #Cheddars, assuming, of course, that Cheddars had registered this hashtag.
Trademarking a hashtag, however, does not prevent someone from using it on Twitter, unless it is used for deceptive purposes as in the above example.
A company interested in trademarking a hashtag should first check to see if the hashtag is already in use. Websites, such as Twubs (http://twubs.com/p/hashtag-directory), provide a directory of hashtags. If your business has international markets, be sure to check the translation of any hashtag to make sure it is not offensive in other languages.
Paul Quin is a partner at Saxon Gilmore & Carraway, P.A., and concentrates his practice on entertainment law, trademark law, toxic torts, products liability, medical malpractice, freedom of speech, environmental law, general tort law, and complex business litigation. He has spent many years as a professional drummer and remains active in the music industry. Mr. Quin represents musicians in a number of civil law arenas. He can be reached at 813.314.4523.
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