Hashtags and Trademarks

The Wall Street Journal reported today that trademark applications for hashtags increased exponentially

in 2015. Hashtags are words or phrases that are preceded by the pound symbol (“#”) to classify a topic

of conversation on social media platforms.

Social media platforms like Twitter, Instagram, and Facebook have become essential marketing tools.

Businesses routinely use hashtags as a promotional device on social media to advertise its goods and

services. For example, Nike uses hashtags for its slogans or new products, for example, #justdoit and

#LunarEpic.

The primary purpose of using a trademark is for a business to indicate a source of origin for its goods

and services to the public. Companies that use non-generic and non-descriptive hashtags on social

media would benefit from federal trademark registration in order to limit competitors from using similar

or the same words or phrases as hashtags which could confuse potential consumers.

Businesses have historically filed trademarks for slogans and taglines before the invention of social

media. The trend of filing a trademark for a hashtag is a continuation of the same concept. However, in

most scenarios, a trademarked word slogan would not need a separate registration with a hashtag for

protection. Since “likelihood of confusion” is the test for trademark infringement, Nike’s “Just Do It” is

fully protected from a competitor using “#justdoit” in social media.

Trademark applications that should include the hashtag would be in cases where the hashtag is always

attached to the word or phrase seeking protection, outside social media.

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