Branded Hashtags: The Next Big Thing?
By Randy Michels, Partner, Stites & Harbison, PLLC, USA, and co-founder of the Trademarkology blog
Merriam-Webster announced on May 19, 2014, in a press release that it was adding the word “hashtag” to the dictionary. “Hashtag” is defined as:
"a word or phrase preceded by the symbol # that classifies or categorizes the accompanying text (such as a tweet)".
Conveniently, the press release provides an example of proper hashtag usage: “Join the New Words conversation on Twitter using hashtag #MW2014NewWords.”
The hashtag phenomenon has created new branding opportunities. It is now common for TV shows to promote themselves through branded hashtags. Singing shows like NBC’s The Voice and Fox’s American Idol are known for their extensive use of hashtags.
Consumer product companies are also getting in on the act. Frozen food maker Birds Eye recently launched a pop-up restaurant that allows customers to pay for their meals by posting photos of their meals on Instagram with the hashtag #BirdsEyeInspirations. Thanks to Birds Eye, you can also literally eat hashtags with its Mashtags fried potato snacks.
The increased usage of hashtags has led to a number of new trademark application filings. #RISETOTHRIVE, and #HELMETSARECOOL are recent examples. One particularly enterprising applicant even tried to obtain trademark protection in the US for the word “hashtag” in connection with TV advertising; various electronic transmission and broadcasting services; and entertainment services such as development, distribution and production of programs, contest and incentive award programs for people who contribute to shows and other interactive entertainment programs.
The United States Patent and Trademark Office (USPTO) rejected the application on the grounds that it was merely descriptive of the applicant’s services “because it immediately tells consumers that the interactive nature of these services involves the use of hashtags, as that term is widely used by others in the industry.” In hashtag parlance, the application was a #fail.
The popularity of hashtags shows no signs of letting up. Therefore, it is important for brand owners to consider the use of hashtags in their branding strategies. If the decision is made to use branded hashtags, then it would be wise to seek trademark protection to effectively protect your reputation and prevent consumer confusion. Otherwise, you might find yourself #notwinning.
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