February 23, 2021

Can You Trademark A Hashtag?

Sharon Kahn and Gianna McArthur discuss trademarks, hashtags, and what social media marketers should know before posting.

What is a trademark? 

Gianna: So to start off I want to briefly discuss the definition of a trademark.  Simply put a trademark is a word, phrase, symbol or design used to distinguish the source of goods. 

Trademarks are useful in commerce because they often serve as a source identifier to connect a particular good or service to its owner. Trademarks registered with the United States Patent and Trademark Office have a lot of advantages, and one of the biggest advantages is the right to exclude others from using your mark or a similar mark in commerce for one of your registered classes.

When you submit a trademark application, you have to designate the type of goods, or class where you will use your mark in commerce.

  • For example: if you want to use your mark on clothing items you should register your mark in class 25 which includes clothing, footwear and headwear.
  • So if the owner of a registered mark discovers that an individual or entity is using the mark in the registered class,  without permission, the owner of the mark has the right to sue for damages or get an injunction to prevent others from using the mark.
  • Essentially this means that if you see someone using your registered brand name or logo, you can legally stop them. 

Can a trademark be a hashtag and if so, how can you use it?

Gianna: The answer is it depends. With the popularity of social media marketing, and the use of hashtags, it is important to be careful with which hashtags are used.

One issue with using hashtags in marketing is creating a false designation of origin or suggesting that the true trademark owner has endorsed the use of the mark in commerce. So what does this mean? Social media marketers cannot use a hashtag in a way that confuses consumers into thinking that the hashtag is associated with the registered mark or that the owner of the registered mark allowed the mark to be used in this way.

For example, a marketer shouldn’t use a Nike hashtag without permission especially if the item is not a Nike brand because in doing so, the marketer could trick consumers into believing that the item was actually related to nike and nike approved the use of the hashtag.  

It is very likely that social media marketers want to bring a wide awareness of products through the use of hashtags, however marketers should be careful when using a registered trademark without permission of the actual owner in commerce.  While there isn’t a definitive answer as to acceptable use of hashtags, social media marketers have to be careful when using hashtags in a way that it causes a false designation of origin.  

What happens if you use a trademarked hashtag if you’re not the owner of the mark?

Sharon: This is also unclear since it’s a new problem we’re facing.

However, at least one federal court has found that "hashtagging" a competitor's name on social media could deceive customers and be considered false advertising.

  • In Fraternity Collection, LLC v. Fargnoli, Fraternity Collection, a shirt designer and manufacturer, sued one of its fashion designers for declaratory and injunctive relief after she began selling her designs to a competitor using the "#fratcollection" and "#fraternitycollection" on social media. The court decided that the designer could be deceiving customers, and sided with Fraternity Collection.
  • On the other hand, another case, Eksouzian v. Albanese saw two competing vape pen companies fight over the use of the word “cloud” and the #cloudpen. In that case, the court said, “hashtags are merely descriptive devices, not trademarks, unitary or otherwise, in and of themselves,” and that no one was in violation of the mark because #cloudpen was being used to direct consumers to the location of the promotion

Are there any exceptions to using a trademark as a hashtag?

Sharon: With no clear answer regarding the use of a trademarked hashtag, the USPTO has made some adjustments to prevent complications.

For instance the USPTO has denied trademarked hashtags for being too vague.

  • Some examples include #WORLDTRAVELER, #TEAMNOSLEEP, and #BETHEFAN because out of context, these hashtags can relate to a wide range of categories, and could potentially cause issues over its use if it were a registered trademark.

In sum, what should everyone know about trademarks and trademark use in the age of social media?

Sharon: One thing to take away from this is that hashtags on social media can be trademarks, however, they must be very specific to a brand or company, so users should be wary about potential infringement

Gianna: So, if you’re a company, be sure to do your research before using a hashtag.

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