We use #hashtags on social media to tag, link, organize, or search for content, from #blacklivesmatter to #selfie to #deflategate.
Companies use hashtags on their websites and sometimes offline, too.
Some people actually say them out loud.
Even your grandma is up on hashtags.
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.”
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.
Trademarks help reward companies' investments and protect consumers. But some companies can be overzealous AF in seeking trademark protection.
When the attorneys at the Trademark Office first started reviewing tagmark applications, they weren’t sure what to do with them.
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.
But a hash symbol does affect how you understand a word or phrase.
Panda Express and #pandaexpress are not the same thing in your mind.
In fact, it can be hard for tagmarks to act like trademarks, for a few reasons.
Some hashtags have thousands of authors who shape their meaning collectively.
A company might not actually be using the hashtag as a trademark, even if it thinks it is.
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.
Noncommercial use is protected by fair use doctrines, whether your post is naughty or nice.
And besides, a company that chooses a tagmark over a traditional trademark wants you to see it, share it, use it, and make it viral. Badly.
So it's worth asking: should tagmarks be a thing?
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