Social media dwellers, beware: #SmileWithACoke will cost you more than a can of fizzy drink. The latest trend in social media is trademarking hashtags.
PepsiCo Inc.’s Naked Juice is one of the growing number of companies and individuals trademarking hashtags. The hashtag #GetNaked and Coca-Cola Co.’s #SmileWithACoke are just two instances out of about 3,000 trademark applications for hashtags that have been filed globally.
Hashtags were popularized on Twitter as a way of categorizing similar tweets by relevant keywords. Typically hashtags are tied to major news stories or events. Other social networks including Facebook and Instagram also embraced hashtags.
Now companies are trademarking hashtags in the same way they trademark logos, catchphrases and other copyrightable designs to keep other entities from using them to market or sell certain goods or services.
Over the past five years, 2,898 applications were filed globally to trademark hashtags. Of those, 1,398 were from last year.
Limiting the use of hashtag and even threatening with legal action in case of misuse, occasional or not, might seem counter-intuitive and not particularly in the spirit of social media. After all, the success of a hashtag depends on how many people are using it.
“The beauty of a hashtag is that no one can control it,” mused Business Insider in 2011, “A hashtag is not like a marketing, media, or political message, whose creator thinks it can be created and controlled… A hashtag is open and profoundly democratic.”
Not all words and symbols can be trademarked — the more generic a term, the less likely an application to trademark it is to succeed.
Ruth Carter, of the Carter Law Firm, says: “Just like you can register a trademark in a company name, product name, or slogan, you can register a trademark in a hashtag. The first rule is your trademark can’t be the generic product. If you own a coffee shop, you can’t register the trademark #coffee. If the U.S. Patent and Trademark Office (USPTO) let you have that, you could stop your competition from calling their coffee “coffee,” which would be very confusing. You could register your business name (i.e., #DansCoffee) or a slogan like #GreatMornings or #WheresMyMug.”
“The second rule is you can’t claim a trademark that your competition is already using. If you were a soda manufacturer, you couldn’t register the trademark #Coke or #CocaCola unless you were the Coca-Cola Company.”
So can you register a trademark in a hashtag? Yes.