The use of hashtags in social media has gained tremendous popularity as a marketing and advertising tool. Business owners can now gain trademark rights and possibly even a registration for their hashtag.
Like all intellectual property, trademarks, including some hashtags, are extremely valuable assets in a business. To protect them, it is important to know how to use and safeguard these assets.

For the most part, the rules for obtaining trademark rights for hashtag marks are the same as those for traditional trademarks.

Some of the most commonly asked questions regarding trademarks and hashtags are answered below. However, it is important to note that this is a relatively new area of intellectual property law, and an experienced trademark attorney can help you navigate the best plan of action.

Does Your Hashtag Qualify As a Trademark?

Whether or not a hashtag can be considered a trademark, depends on how you are using it.  The two basic questions are:

• Is your hashtag being used to market a particular good or service?
• Does your hashtag identify your business as the source of the good or service?

For example, if you operate a chain of pet stores called ABX Pets, and post pictures advertising your store on Instagram using the hashtags #cats, #pets, #puppy, #dogfood, these hashtags would not qualify as trademarks.  These are all generic, descriptive words, and we would not expect these hashtags to identify your business in particular. 

On the other hand, if you use the hashtag #ABXPets in an Instagram post that advertises your stores, this may qualify as a trademark use. If you use #ABXPets on displays within your stores, this may also qualify as a trademark use.

Can You Use Your Existing Trademarks in a Hashtag?

Yes, you may use your existing trademarks in a hashtag. It is important to remember that only certain kinds of uses of hashtags may qualify as trademark use.

Can You Stop Someone From Using Your Trademarks in a Hashtag?

If a competing pet store is using #ABXPets to identify their business, and a customer would think that they are affiliated or connected to your business, then this may be considered infringement of your trademark rights.  The key question is whether the competitor is using #ABXPets as their own trademark.

Can You Use Someone Else’s Trademarks in a Hashtag Promoting Your Business?

You should refrain from using another party’s trademark in a hashtag to promote your business if both of you offer the same or similar goods/services.  Doing so could open you up to liability and a claim of trademark infringement.  There are, however, uses of someone else’s trademarks in hashtags that may be perfectly valid.  You may be able to use another party’s mark as a hashtag to refer directly to their product or business.  Before using a competitor’s trademark in a hashtag, consulting with an experienced trademark attorney can help you avoid liability.

Should You Register Your Hashtag as a Trademark?

The registration of hashtag trademarks has increased greatly over the last several years, as businesses seek to protect this high-value tool in their marketing efforts.  However, it is important to consider first if your use of the hashtag will qualify as a trademark.  Second, you should consider all the different ways you may use this trademark.  

Will it only be used as a hashtag or also as a standalone mark or both? 

If you will be using it both ways, you may wish to prioritize securing a trademark registration for the as a regular mark instead of a hashtag mark.  This is because securing a trademark registration for your mark, may help protect against infringing uses of the mark with or without a hashtag.  It would create a broader scope of protection than obtaining a registration for only the hashtag.

However, if you create a hashtag mark that will only be used with the # and never as a standalone mark, then you should consider filing a federal trademark application if you wish to protect it as a hashtag trademark for specific goods or services.