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Your Favorite Hashtag Might Secretly Be A Registered Trademark

Some companies are seeking legal protection for hashtags. Here’s why—most of the time—they don't deserve it.

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Some companies think a hashtag they use can also be a trademark they own. Thousands of them have applied to register hashtag trademarks with the US Trademark Office. I call these “tagmarks.”

actual specimen for @uspto application to register tagmark #MOMLEBRITY. i can't even. @momlebrity @momlebrities

But whether something is a trademark depends on whether consumers understand it as one. A trademark tells you who sells something or distinguishes a product from the competition, like COCA-COLA for soda or AMERICAN IDOL for a singing contest.

So they decided to pretend the hash symbol was invisible and didn’t affect how consumers perceive a mark. So far they’ve granted registration for over 200 tagmarks.

Panda Express and #pandaexpress are not the same thing in your mind.

Instagram: @na / Via instagram.com

And you might not see a tagmark as telling you who makes a product or distinguishing one brand from others—you might just see it as an invitation to tag your own content a certain way.

If hashtags are being protected as trademarks, but they’re not functioning as trademarks, what do we do? I propose the USPTO stop registering them unless and until each owner can prove that consumers recognize its tagmarks as trademarks.

Even when a tagmark is registered as a trademark, its owner probably won’t come after you for last week’s #tbt.

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