Hashtags – words or phrases preceded by the ‘#’ symbol have grown into an important promotional tool for businesses on social media platforms like Instagram. Many businesses create hashtags as part of a marketing campaign that helps drive consumer engagement with the business or product. But can a hashtag creator claim intellectual property rights to protect their mark? In a word, yes. But only through trademark protections (hashtags are too short for copyright protections and are inapplicable to patents).
A hashtag may be considered for trademark protection if it can meet the same general requirements that all trademarks must meet. That is, the hashtag functions as a trademark by being used by a business or organization to identify and distinguish the business, its products or services from those of another and to indicate the source of the products or services.
How to #ProtectYourHashtag
To establish rights in a hashtag that you or your business has created, you need to seek registration of the hashtag with the US Patent and Trademark Office (USPTO). But in order to register your hashtag, your company will have to demonstrate to the USPTO that you are using the hashtag to promote your products or services to the public. The path to registration is a long and sometimes confusing process, but the upside is that it is relatively cheap (USPTO registrations filing fees start around $225).
Great, I Have a Trademark, Now What?
Obtaining a trademark for a hashtag won’t prevent others from using it on Instagram or any other website, even if the business dislikes the way it is being used. What trademark protection will do, however, is help prevent competitors from using the hashtag to compete with the services or products you provide. If the use of a hashtag is likely to confuse consumers, then it is likely that the business has claims for trademark infringement.
But (there’s always a but), you need to weigh the advantages of trademarking a hashtag, with the costs. The registration of a trademark can routinely take over a year (and that’s when everything goes according to plan), so investing in a registration may not be worth it for a hashtag with a short shelf life. Also, even if your business has a valid hashtag registration, the costs for litigating infringement can be high.
Getting a hashtag registered may be a wise decision for your company, but several factors need to be considered before plunging into this nuanced area of law. If you are interested in registering a hashtag for your business, contact the #ExperiencedAttorneys at The Jacobs Law to guide you through the process.