This question came up when a client with an existing registered trademark, a word mark, discovered someone was using that trademark on Twitter with a hashtag to promote a completely unrelated product on the other side of the world. “Don’t I own that trademark?” the client asked. Good question. Yes, she owned the trademark for the word in the U.S., having registered the mark on the principal register of the U.S. Patent & Trademark Office (USPTO) a few years prior. But could she claim ownership of the word preceded by the hashtag? Not likely.
A mark consisting of or containing the hashtag symbol (#) or the word “HASHTAG” can be registered as a trademark only if it serves to identify the source of the applicant’s goods or services. Merely using the trademark with the hashtag on social media to promote awareness of the goods or services is not enough. Applying for registration of a trademark that includes a hashtag may prompt the USPTO to respond with an advisory like this one:
“Applicant is advised that … registration may be refused on the ground that the applied-for mark …. is used merely as a hashtag for online social media, and as such does not function as a trademark or service mark to indicate the source of applicant’s goods and/or services and to identify and distinguish them from others.….. Hashtags are used on social-networking sites to identify or search for a keyword or topic of interest. An applied-for mark that includes the hash symbol (#) or term “hashtag” is registrable only if it also serves as a source indicator for the identified goods and/or services.”(Italics added.)
If you want to register your trademark with the hashtag, be prepared to demonstrate that you are actively using the #trademark on your goods (or its packaging), or closely identifying the #trademark with your services, for example on your website and other marketing materials.
As for the client, while she had used the mark on social media preceded by the hashtag, she was not using the mark with the hashtag on her goods. And the Twitter user? They were using the hashtag the same way, i.e., as an online social media tool, not as a source identifier. Neither one gets #TrademarkProtection.