As the ignition keys to a social media keyword search, hashtags can be a powerful tool for marketers to drive viral conversations with and reactions to their brands. A great hashtag will spread far and wide across the digital landscape, but brands will naturally get upset if competitors try to cash in by hijacking the content stream tied to a hashtag with their own marketing messages. To guard against this, companies are increasingly seeking trademark protections for their hashtags.
Ronda Majure, vice president and head of global sales at Thomson Reuters, was part of a team that has examined the rise of hashtag trademarking since 2010.
“I think one of the interesting things that we’ve seen is that [trademarking hashtags] is becoming part of the brand strategy,” Majure says. “It isn’t now just ‘did I get the domain name?’ [It’s] ‘do I also need a design with my trademark?’ People are also now looking at whether or not they should they be registering the hashtag. And those are always exciting times in terms of working in the brand business and marketing arena.”
In 2010, four years after the launch of Twitter, only seven companies had submitted applications to trademark specific hashtags, according to Thomson Reuters. Fast-forward to today and that number has increased exponentially, with 1,400 global applications in 2015 alone. Nearly 2,900 trademark applications have been filed in the past five years, led by the U.S. (1,042), and followed by Brazil (321), France (159), the U.K. (115) and Italy (115).
Majure ascribes much of the registration boom to the rise of social media, particularly Twitter. “Marketing your brands and being able to compete in social media is really the up-and-coming thing and probably the least expensive form of advertising,” she says. “We’re in early days in terms of what we’re seeing happen here, but the need for being able to control your trademark, [and] to monitor it has always been important to brand owners. Being able to trademark the hashtag gives them ways to promote and license the rights of their hashtag.”
Majure says it costs $275 and usually takes around six months to register a trademark, as long as there are no hiccups in the process. Hashtags have been secured by both small boutique businesses like #TheFitNewYorker and #BOSSBABE and huge brands such as Coke and Procter & Gamble. Along with security, trademarking a hashtag gives brands flexibility to re-use a hashtag in other forms of advertising.
Not all applications are successful. Majure’s team found that each year since 2010, applications are more likely to be abandoned than registered. But since the U.S. process for registering trademarks was updated in 2013 to include hashtags, the success rate has been on the rise.
The U.S. Patent and Trademark Office defines a hashtag as “a form of metadata comprised of a word or phrase prefixed with the symbol ‘#’” and states that a hashtag is registerable only if it functions as an identifier of the source of the applicant’s goods or services. The office compares the examples #ingenuity—registerable for business consulting services as a distinctive term—and #skater—too generic a term for skateboard equipment and thus not registerable. This determination, the office says, is “made on a case-by-case basis.”
That statement has caused the law over trademarks to remain uncertain to a degree, with some people claiming most, if not all, hashtags fall into the public domain. Summarizing an important 2015 ruling on hashtag trademarks in the case Eksouzian v. Albanese, intellectual property attorneys Kimberly Buffington and Carolyn S. Toto write on the social media law blog for the corporate law firm Pillsbury Winthrop Shaw Pittman:
“The Court went on to cite the Trademark Manual of Examining Procedure (TMEP) and state that “[t]he addition of the term HASHTAG or the hash symbol (#) to an otherwise unregistrable mark typically cannot render it registrable.”
Majure acknowledges the uncertainty, saying, “what we find is that until there is definitive case law around a particular area it can be a gray area in terms of what people are wanting to do with their brand.”
Further rulings are expected, including one in the closely watched case involving Kris Jenner’s pursuit of a trademark for #proudmama, and carry the potential to alter and solidify the rules surrounding trademarked hashtags.
“That one is not actually a brand but she uses it within all her tweets. #Proudmama gives the appearance of being very descriptive. Whether or not that gets approved will be an interesting turning point for hashtags and trademarking,” Majure says.
Until then, Majure advises brands to consider their long-term goals with any hashtag they use, and, to determine if a hashtag is something that needs to be protected with coverage equal to other brand assets.