Trademarking a Hashtag
Is your hashtag uniquely yours? And how can you protect its use legally? We sat down with Mr. Marvin R. Pendarvis, Esq of The Curry Law Firm in Charleston, SC to get hear his thoughts on the matter.
MP: For the last three years, the US Patent & Trademark Office (USPTO) has changed its criteria in recognition of the increasing use of hashtag trademarking. That criteria, however, is not exactly clear and it has sparked much debate about the threshold for meeting USPTO approval. Based on my findings, the USPTO is generally looking for hashtags that are used in a non-internet context, and not merely as a means for facilitating on-line searching; e.g., signage and end caps. Preliminary research seems to suggest that hashtags have been reserved for major brands, but I believe that will change over time.
How Can Photographers Legally Protect a Hashtag?
MP: I would suggest that photographers continue to be creative, unique, and fanciful in their creation of a hashtag. Furthermore, ensure that they do more than use them for their social media presence. In my opinion, uses of a hashtag in photograph watermarks, and in any merchandise they sell would create the non-internet use the USPTO is looking for.
Even if approved, the case law on trademark protection is split. There are a number of courts that have rejected the notion that hashtags deserve trademark infringement protection; however, there are others that have afforded protection based on “certain circumstances.” What those “certain circumstances” are has not been clearly articulated by the courts to date.
Based on the fact that this is a relatively new area of law, I suspect that we are some years away from any uniformity on it.
MP: So long as photographers continue to think of creative non-internet ways to promote their product, I believe they have a compelling argument for approval with the USPTO.
Featured Image courtesy of Aneris Photography