Originating in Twitter as a means of designating keyword search terms, the # (hashtag) has become a ubiquitous symbol of the social media age.  As the political season heats up, tweeting has gone wild with political candidates and their supporters exchange 140 character barbs.  This hyperactivity has spilled over to print and digital media in which tweets along with hash tagged words, are freely quoted as news.  Yet, many older folks don’t have a clue as to what hashtags are and what they do.  Here’s a very brief explanation courtesy of Wikipedia:

A hashtag is a type of label or metadata tag used on social network and microblogging services which makes it easier for users to find messages with a specific theme or content. Users create and use hashtags by placing the hash character (or pound sign) # in front of a word or unspaced phrase, either in the main text of a message or at the end. Searching for that hashtag will then present each message that has been tagged with it. A hashtag archive is consequently collected into a single stream under the same hashtag.

The question of whether you can register a hashtag as a trademark – as strange as it seems – has been asked and answered.  Yes and why not!  A recent search of the U.S. Patent and Trademark Office trademark database revealed that at least 173 hashtag trademarks have been registered or are in the application process.  The Trademark Manual of Examining Procedure even has a section devoted to hashtag trademarks.  Here are the important points for consideration:

  1. A mark consisting of or containing the hash symbol (#) or the term HASHTAG is registrable only if it functions as a trademark, that is, it identifies the source of the owner’s goods and services;
  2. The determination of whether a mark is a “hashtag mark” is made on a case-by-case basis.  The use of a hashtag doesn’t necessarily mean that it is a hashtag mark.  For example, #29 means number 29; it’s not a hashtag;
  3. Generally, the hash symbol and the wording HASHTAG do not provide any source-indicating function they merely “facilitate categorization and searching”;
  4. Simply adding the word HASHTAG or the hash symbol (#) to an otherwise unregistrable mark will not render it registrable. If the hashtag mark is merely descriptive or generic for the goods or services, the entire mark will be refused as merely descriptive or generic.
  5. The applicant may have to disclaim the hashtag term where it is separable from other registrable matter.

Hashtag marks have also received recent publicity. The U.S. Olympic Committee (USOC) has reportedly contacted certain companies sponsoring athletes that do not have a commercial relationship with the committee, warning them against infringing its trademarks. According to one source, in an effort to protect brand sponsors, the chief marketing officer of the USOC wrote that “Commercial entities may not post about the trials or games on their corporate social media accounts…. This restriction includes the use of USOC’s trademarks and hashtags such as #Rio2016 or #TeamUSA.”  The letter also reportedly prohibited companies — not news organizations — from mentioning results or reposting anything from the official Rio Olympics Twitter account.  Is this enforceable?  It’s questionable and may boil down to a “fair use” analysis, a topic we have covered in aprevious post.  Sporting organizations typically over reach the law in prohibiting dissemination of information about sporting events, which is another topic we’ve written about.

Have a question about how your organization uses sports-related information, contact the lawyers at LWH.  W”d love to help.

— Adam G. Garson, Esq.