Adding a hash symbol to a phrase changes nothing about whether you can own it. What the hashtag changes is the commercial calculation — and the useful filter turns out to be how long the tag will still mean something.
How we got here
Not long ago, advertisements on radio, print and television were the best way to spread word of a product. It now takes more than a few ads and discounts to retain consumers and hold market share. Marketing and brand building have moved online, and claiming a place in that space is among the biggest challenges businesses face.
Joining the existing techniques is the hashtag. What began as a trending symbol on Twitter came to dominate social media at large — users on Facebook, Instagram, Tumblr and elsewhere adopting it in status messages, posts and pictures.
The resulting buzz concerns registering hashtags as trademarks. A basic search of the USPTO register reveals over a hundred and fifty marks including a hashtag.
The basic rule
For registration purposes, a hashtag must be judged as a trademark. It must be used in association with the goods or services for which it is claimed, and the process mirrors ordinary trademark registration — including a clearance search to ensure the hashtag is not already registered, avoiding an infringement suit later.
The USPTO puts the governing principle plainly: what cannot be registered as a trademark cannot be registered as a hashtag. The hash symbol adds nothing to registrability.
Choosing one worth registering
There is no straitjacket formula, but a few considerations help.
It should be unique and creative. A hashtag is used primarily on social media rather than directly on the goods, so distinctiveness has to come from the phrase itself.
Avoid marks common to the trade. They are unlikely to make an impact on the target audience, and equally unlikely to be registrable.
What appears on social media is usually an abbreviation of the brand name, or a tagline or slogan the brand wants to promote. When a coined phrase used with a hashtag becomes associated with the brand and its owner, it becomes a good trademark and something worth registering.
Take Nike. It holds registrations for Nike, Just Do It and the swoosh, popularised through advertising and social posts. It may also use campaign-related hashtags that are not registered marks — and registering those may well be a prudent business decision.
Publicity cuts both ways
On social media, not all publicity is good publicity. McDonald’s launched #McDstories on Twitter so customers could share their experiences. It backfired when customers responded with complaints, and the campaign was shut down within two hours.
There are also many cases where a hashtag became popular through heavy use by the company and by users happy to sing its praises. The point is that a hashtag hands the conversation to the audience, and a registration does not change who controls what they say.
Longevity is the filter
Trends change about as fast as a person can type one. So the question to ask is whether the tag identifies the owner and can be used over a long period. If so, it may be worth protecting. If it merely denotes a contest or piggybacks on something trending, it probably makes little sense — registration takes longer than the trend will last.
The limits of enforcement
Where there is a trademark, infringement is possible. The pertinent question for hashtag marks is how far the owner can actually exercise rights over one.
Social media is legitimately a medium to praise, criticise or analyse goods and services. There is little clarity on a trademark owner’s ability to stop a user doing so, or what action follows.
That uncertainty has largely resolved in the direction you would expect: use of a hashtag to join a conversation is not use as a badge of trade origin, and neither courts nor platforms will treat it as infringement. The real value of a hashtag registration is against commercial hijacking by competitors, not against users.
The takeaways
- Unregistrable stays unregistrable — the hash symbol adds nothing.
- Distinctive and coined tags work; common-to-trade ones do not.
- Longevity is the filter — register tags that outlast the campaign.
- Enforcement reaches commercial hijacking, not ordinary user posts.
Frequently asked questions
Can a hashtag be registered as a trademark? Yes, where it functions as a trademark for the goods or services claimed — but a phrase that would not be registrable on its own does not become registrable by adding a hash.
Which hashtags are worth registering? Distinctive, coined tags that identify the brand over a long period — not those tied to a single contest or a passing trend.
Can I stop people using my registered hashtag on social media? Generally not where they are simply joining a conversation or commenting. Registration is most useful against commercial use by competitors.
Do I need a search before adopting a hashtag? Yes — the same clearance considerations apply as for any trademark, to avoid adopting something already registered.
Useful official resources
- The Trade Marks Act, 1999
- USPTO