Can I Trademark My Hashtag?

January 29, 2015

Once the sole province of Twitter users, the hashtag is everywhere now — on social networks, products, television and at political events. Hashtags are increasingly used to market a wide range of products, services, events and brands.

If your business wants to use a hashtag as part of a marketing campaign, can you trademark it? The answer is probably yes, as long as it is not already in use and not likely to create confusion with another business or product. The US Patent and Trademark Offices looks at a number of factors to evaluate whether any word, phrase, symbol design or hashtag can be trademarked.

Should you trademark your hashtag? That may be a much more complicated question.

Trademarks are for Business

As a threshold matter, you must demonstrate to the USPTO that you intend to use the hashtag to promote or sell your products or services. Trademarking a hashtag will not prevent others from using it in noncommercial ways, including ways to which may object. Public policy considerations weigh against reserving combinations of words, phrases or symbols for one person’s or group’s sole use in general public discourse. Trademark protection is designed to prevent a form of unfair competition. Its sole function is to prevent companies and service providers within the same industry from using something associated with your business identity to compete against you.

What Marks, Including Hashtags, Can be Trademarked?

In general, the USPTO looks at several factors when determining whether to permit registration. In one way or another, many of these factors get to the issue of whether there is a “likelihood of confusion” between your proposed mark and a mark that is already registered, or for which there is a pending application. Marks may create confusion when:

  • the marks are similar, and the goods and or services of the parties are related such that consumers would mistakenly believe they come from the same source.
  • The mark is a “weak” or descriptive mark, rather than a “strong” mark, which generally means that it is arbitrary, fanciful or suggestive.

Similar Marks/Similar Products

Similarity in sound, appearance, and or meaning may be sufficient to support a finding that confusion is likely, but only if the products themselves are related. Trying to register the name “Mickey D’s” for a business that sells fast food would be less likely to succeed than trying to register the same name for a business that sells office equipment. In the same vein, registering “#Occupy Walnut Avenue” for a political organization would be less likely to be approved than the same hashtag for a residential real estate brokerage. The same is true of translations into other languages. #BlackCat might be thought to create confusion with #ChatNoir if the products were also similar.

The first step in any trademark application, therefore, is some comprehensive research into similar names, logos or hashtags that are already in use. The USPTO maintains a searchable list of trademarks that have been registered or applied for.  A quick check with a website, such as Twubs, may tell you if a hashtag is already in use.

Strong vs. Weak

It is very difficult to protect generic terms, like “beverage” or “hat” from infringement. Prohibiting the use of such terms in commerce would simply be impossible. Donald Trump’s application to register the phrase “You’re fired!” was denied, for obvious reasons. The USPTO generally looks more favorably in terms that are invented like “Exxon,” which, at least originally, had no generic meaning.

Hashtags that are arbitrary, fanciful or suggestive are more likely to be accepted for registration than those that are generic or merely descriptive. Although #cheese might not be accepted, #FriendlyFred’sCheese for a cheese marketer might be sufficiently distinctive.

Other Issues that the USPTO Will Consider

In addition, the USPTO may refuse registration where a mark is a surname; a geographic description of the origin of the goods or services; disparaging or offensive; a foreign term that translates to a descriptive or generic term; an individual’s name or likeness; the title of a single book or movie; and something that is used in a purely ornamental manner.

If you plan to market your goods or services in another language under the same mark, you should also be sure to double check the translation and other cultural connotations to avoid comic or offensive results. Marketing lore is full of unfortunate examples, such as the California Milk Processor Board’s “Got Milk?” campaign that came across as a weirdly intrusive inquiry about lactation in Spanish.

Twitter’s Trademark Policy

Twitter prohibits the use of a company or business name, logo, or other trademark-protected materials in a manner that may mislead or confuse others with regard to its brand or business affiliation. It may suspend the user’s account where there is clear evidence of an intent to mislead. For less serious violations, the account holder may have an opportunity to clear up any potential confusion.

Should You Trademark Your Hashtag?

There are two sides to this question, of course, and both can be fairly compelling. It depends largely on your business’s future plans for the hashtag.

The Case for Federal Trademark Registration

You may have been aware of the benefits of federal trademark protection long before you got to the hashtag issue. Perhaps you have already registered your business name, dba, logo and other signature business identifiers.

Without federal trademark registration, you will have only common law protection or perhaps protection under state law, though few people register for that. Both are quite limited.

Common law rights are created through use and only apply in the geographic area in which the product is marketed. Since there is no registration it is hard to know whether another similar business is using the name, symbol or hashtag. State law registration is also limited to the state. Both situations make expansion very difficult. With either, you could lose the years of work that you spent developing a reputation and goodwill for your business, when an out-of-state or out-of-area competitor uses the same hashtag.

Federal trademark registration, on the other hand, creates a legal presumption that you own the mark, (or business name, brand name, or whatever you have registered) and have the exclusive right to use it nationwide.  It also gives you the right to sue someone in federal court for infringing on it.

If your hashtag is an important element of a marketing campaign that you intend to use for a long period of time, by all means seek federal registration.

The Case against Federal Trademark Registration

The first issue is principally about time. One reason that social media marketing is fun and fresh is because it’s ephemeral. A decision on a trademark application, on the other hand, may take six or seven months. If you intended to use the hashtag in only a quick, temporary fashion, it may not be worth the cost and effort, even though your application for trademark protection will take precedence over any later applications for the same hashtag. A search to determine whether it is already in use may be enough.

Secondly, because of the viral nature of hashtag marketing, you may actually not want to discourage people from using it freely. Even a technically infringing use may work to your benefit if your business is already strongly identified with a hashtag.

Trademark law is also not self-enforcing. The general rule is that a trademark is worth only what you are willing to do to defend it. That does not necessarily mean endless litigation; many issues can be solved with an attorney’s demand letter, but you should be aware that a trademark that is valuable to your business will likely require vigorous effort to protect. Many businesses engage trademark monitoring services to actively monitor for infringements and a business attorney to follow up.

Others suggest that hashtags marketing campaigns are, well, a little 2013 at this point. The fact that hashtags are everywhere may mean that the fad that has run its course. They have their haters, and they have become a staple of late night comedy. Is it over? Instant messaging apps may now be moving into the trendy marketing arena that Twitter once owned.

There is nothing peculiar about hashtags that prevent businesses from applying for federal trademark protection. The USPTO’s review process will consider whether the hashtag is unique or likely to create confusion on the basis of many of the same factors that would come into play with any trademark application. Twitter will enforce its trademark policy based on many of the same considerations.

Whether it’s a good idea to trademark your hashtag will depend on what role you see it playing in your business’s marketing future. If you expect it to have an important and relatively long-term role, and your business is willing to protect it through the legal process, if necessary, then applying for federal trademark protection may be the right move.

Federal trademark registration is not required, however. If you see a more minor role for the hashtag, it may be enough to do a careful check to ensure that it is not already in use, so that your business is not infringing and then rely on common law protection.

Is hashtag marketing a good move? It’s hard to say, but worth asking your marketing gurus about.

Protecting Brand Law Page


Anne Wallace is a New York lawyer who writes extensively on legal and business issues. She also teaches law and business writing at the college and professional level. Anne graduated from Fordham Law School and Wellesley College.

Get Business Legal Updates

Please provide your full name.
Please provide a valid email address.
We respect your privacy, and we will never share your information. Unsubscribe at any time.

Related Publications

In this episode, Nasir Pasha and Matt Staub explore the legal implications of Artificial Intelligence in the business world. They delve into the most talked-about issue of 2023: AI and its impact on the legal landscape. Although AI isn’t necessarily a new topic, it has many unanswered questions in the legal world. Nasir and Matt…

November 21, 2023

Crave Cookies and Dirty Dough are two new cookie companies that are fighting to establish themselves in the Utah market. Crumbl Cookies, one of the most popular cookie companies recently filed a lawsuit against them. Crumbl Cookies have filed a trademark infringement lawsuit against these businesses claiming they both are copying their logo & packaging. Crumbl Cookies also claimed that the other businesses are attempting to profit off of its reputation and branding. Dirty Dough has responded with their thoughts on this lawsuit on social media but we will just have to wait and see how this one plays out.

August 4, 2022

Managing Attorney Nasir gives you a brief breakdown about product placements in televisions and movies. Watch to the end for a movie secret tip!

December 14, 2021

Is your business considering rebranding or a name change in 2021? Make sure you know the legal implications. Learn more in this article:

June 18, 2021

Your business has worked hard to build your brand and reputation. Are you protecting it? Learn nine legal strategies to ensure your brand is protected:

May 25, 2021

Are you considering rebranding in 2021? We have a Legally Sound | Smart Business podcast episode all about the legal implications of a rebrand. Give it a listen to make sure you avoid any potential pitfalls before you start!

May 20, 2021

Did you know there is one US location in which burger chain Burger King is not able to use their brand name? In Mattoon, IL, the Hootses family was able to prove prior use of the name in court in 1968, despite the chain’s successful trademark registration. As a result, the family can use the…

January 6, 2021

The ink is drying on the signature line and things are looking great for our buyer. After so much hard work, the finish line is in sight and the cheering within ear shot.   Though the landlord is still serving friction, things seem safe to move forward and for now, our buyer will be keeping…

September 15, 2020

In August, a federal judge overturned a lower court ruling in a case brought by Tiffany & Co. against Costco. Costco sold rings described as having a “Tiffany setting.” The judge determined the description is commonly used enough to negate the trademark claim for this instance. “Tiffany setting” has achieved “Kleenex status,” meaning that the…

September 3, 2020

Though things are coming along well, the journey would not be interesting if it was purely smooth sailing. After our buyer opens escrow, they are forced to push the closing date back when suddenly a letter from an attorney was received claiming the business, we are buying has a trade mark on the name!  Now…

July 31, 2020

Philip Martin McCaulay, a longtime fan of the Washington Redskins, has been criticized for purchasing multiple trademarks on potential replacement names for the team. He and his lawyer, Darren Heitner of Heitner Legal, claim his intention was to prevent others from creating obstacles in the process of choosing a new name; however, it is argued…

July 24, 2020

“Space Force,” the name of Trump’s sixth military branch, is still pending in the U.S., but Netflix wasted no time securing the trademark for its new show. Read the full article here >>

June 11, 2020
Legally Sound Smart Business cover art

Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
Apple Podcast badge
Google Podcast badge
Spotify Podcast badge

Latest Episodes

November 21, 2023

In this episode, Nasir Pasha and Matt Staub explore the legal implications of Artificial Intelligence in the business world. They delve into the most talked-about issue of 2023: AI and its impact on the legal landscape. Although AI isn’t necessarily a new topic, it has many unanswered questions in the legal world. Nasir and Matt…

July 12, 2023

In this episode, Attorney Nasir Pasha and Attorney Matt Staub delve deep into the complexities of mass layoffs and offer valuable insights, real-life examples, and practical advice to employers grappling with the aftermath of such challenging situations. Nasir and Matt emphasize the critical importance of effective communication when executing mass layoffs. They stress the need…

January 9, 2023

As the COVID-19 pandemic swept across the globe, businesses scrambled to adapt to the new reality it presented. In this blog post, we dive into the case of Goldman Sachs, a financial services giant, to examine their response to the crisis and the lessons other businesses can learn from their return-to-office strategy. From prioritizing employee…

October 28, 2022

Full Podcast Transcript NASIR: Finally, my two favorite worlds have collided – both the law and the chess – right here at Memorial Park in Houston, Texas. Windy day. We have some background noise – ambient noise. What are the two worlds that collided? Well, Hans Neimann has sued Magnus Carlsen for defamation in one…

September 26, 2022

Through a five-round championship bout, Matt travels to Texas from California to determine which state is better for business. Will it be a knockout with a clear winner or will it go to the scorecards?

July 7, 2022

Whether you are buying or selling a business, the transaction goes through the same steps. However, they are viewed from different perspectives. Sellers may not want to fully disclose all the blind spots while Buyers will want otherwise. Nasir and Matt battle it out in this Buyer vs. Seller to determine who has the advantage!…

May 12, 2022

When it comes to Restrictive Covenants, employers are fighting to keep their company safe while employees may use them to their advantage. Keep listening to find out if the Employer or the Employee wins this battle. Round 1: Trade Secrets A company’s trade secrets encompass a whole range of information and are one of the…

February 14, 2022

The Supreme Court rejected the nation’s vaccine mandate. Businesses with 100 or more employees are NOT required to have their employees vaccinated or go through weekly testings. However, this policy remains in effect for health care facilities. In this episode of Legally Sound | Smart Business, the team sat down to discuss their thoughts on this ruling.

December 1, 2021

In this episode of Legally Sound | Smart Business by Pasha Law PC, Nasir and Matt cover the Business of Healthcare. There is more to the healthcare industry than just doctors and nurses. Many Americans have health insurance to cover their yearly needs, but most Americans are not aware of what really goes on behind…

October 12, 2021

In our latest episode, Nasir and Matt are covering the legal issues on Social Media. The average person spends most of their day on social media, whether they are scrolling for hours or publishing their own content. However, just because you publish your own content on Instagram does not equate to you owning that image….

September 28, 2021

What is a Non-Disclosure Agreement, and when do I need one? In this episode, Nasir and Matt shares why you need to use Non-Disclosure Agreements, basic facts about NDA’s, and discuss about the infamous Jenner-Woods story. Having the right Non-Disclosure Agreement in place not only protects you and your business, but it also makes the…

June 16, 2021

Covered in this episode of Legally Sound Smart Business are some typical business mistakes blunders small businesses often make and how to avoid them. Blunder #1: Copying and pasting agreements It may sound like a good idea at the time, but this blunder comes with hidden pitfalls. Having an attorney draft terms that are specific…

February 4, 2021

How you terminate an employee can make the difference between a graceful transition to avoidable negative outcomes like a dramatic exit or even a lawsuit. We gathered a panel of experts and asked them – is there a “right way” to fire an employee? We would like to thank our guests for this episode: Amr…

December 2, 2020

The COVID-19 pandemic has turned nearly every aspect of life on its head, and that certainly holds true for the business world. In this episode, Matt and Nasir explain how the early days of the pandemic felt like the Wild West and how the shifting legal playing field left a lot open to interpretation and…

November 16, 2020

After plenty of ups and downs, our buyer has finally closed on the purchase of their business. While we’re marking this down in the ‘wins’ column, it never hurts to review the game tape. In this final episode, our hosts, Matt Staub and Nasir Pasha, return to the deal almost a year later to reflect…

September 15, 2020

The ink is drying on the signature line and things are looking great for our buyer. After so much hard work, the finish line is in sight and the cheering within ear shot.   Though the landlord is still serving friction, things seem safe to move forward and for now, our buyer will be keeping…

July 31, 2020

Though things are coming along well, the journey would not be interesting if it was purely smooth sailing. After our buyer opens escrow, they are forced to push the closing date back when suddenly a letter from an attorney was received claiming the business, we are buying has a trade mark on the name!  Now…

June 12, 2020

With frustration at an all-time high and professionalism at an all-time low, our friend the Buyer has “had it” with the Seller and quite frankly their lack of knowledge. At present our Buyer is rightfully concerned that the latest misstep from our loose-lipped Seller will threaten not only the entire operation of the businesses but…

May 11, 2020

As we go deeper into the buying process, we start to uncover more challenges from our seller and encounter some of the wrenches they are tossing our way. When we last left off in episode three our team was knee deep in due diligence for our buyer, had already penned and signed the Letter of…

April 4, 2020

One word–interloper! When a new mysterious broker enters the transaction and starts to kick up dust, Nasir and Matt take the reins. The seller signed off on the letter of intent (see episode 2), yet this “business broker” serves only friction and challenges by refusing to send financials, whilst demanding more of a firm commitment…

April 4, 2020

Just as most stories and deals start out, everyone is optimistic, idealistic and full of hope for clear skies. It’s a perfect outlook with a perfect setup for the ups and downs yet to come. Peek further behind the curtain and into the first steps of buying a business: the letter of intent. After the…

April 4, 2020

When a savvy buyer hears opportunity knocking to purchase a prime positioned business, she decides not to go it alone and taps in the professionals to help navigate what could potentially be a fruitful acquisition. “Behind the Buy” is a truly rare and exclusive peak into the actual process, dangers, pitfalls and achievements, that can…

August 7, 2019

GrubHub is subject to two “matters of controversy” that have likely become common knowledge to business owners: “fake” orders and unfriendly microsites.

May 28, 2019

In this podcast episode, Matt and Nasir breakdown the legal issues of the subscription industry’s business on the internet. Resources A good 50-state survey for data breach notifications as of July 2018. California Auto-Renewal Law (July 2018) Privacy Policies Law by State Why Users of Ashley Madison May Not Sue for Data Breach [e210] Ultimate…

March 12, 2019

In recording this episode’s topic on the business buying process, Matt’s metaphor, in comparing the process to getting married probably went too far, but they do resemble one another. Listen to the episode for legal advice on buying a business.

December 3, 2018

Nasir and Matt return to discuss the different options available to companies looking to raise funds through general solicitation and crowdfunding. They discuss the rules associated with the various offerings under SEC regulations and state laws, as well as more informal arrangements. The two also discuss the intriguing story about a couple who raised over…

July 24, 2018

Flight Sim Labs, a software add-on creator for flight simulators, stepped into a PR disaster and possibly some substantial legal issues when it allegedly included a Trojan horse of sorts as malware to combat pirating of its $100 Airbus A320 software. The hidden test.exe file triggered anti-virus software for good reason as it was actually…

April 17, 2018

Attorneys Matt Staub and Nasir Pasha examine Mark Zuckerberg’s congressional hearings about the state of Facebook. The two also discuss Cambridge Analytica and the series of events that led to the congressional hearings, the former and current versions of Facebook’s Terms of Service, and how businesses should be handling data privacy. Full Podcast Transcript NASIR:…

March 10, 2018

The Trump presidency has led to a major increase in ICE immigration enforcement. It’s critical for business owners to both comply with and know their rights when it comes to an ICE audit or raid. Nasir, Matt, and Pasha Law attorney Karen McConville discuss how businesses can prepare for potential ICE action and how to…

February 5, 2018

New years always bring new laws. Effective January 1, 2018, California has made general contractors jointly liable for the unpaid wages, fringe benefits, and other benefit payments of a subcontractor. Nasir and Matt discuss who the new law applies to and how this affects all tiers in the general contractor-subcontractor relationship. Click here to learn…

January 2, 2018

With a seemingly endless amount of new mattress options becoming available, it is unsurprising that the market has become increasingly aggressive. As companies invest in more innovative solutions to get in front of customers, review sites, blogs and YouTube videos have moved to the forefront of how customers are deciding on their mattresses and how…

December 7, 2017

In recent months explosive amounts of high profile allegations of sexual harassment, assault, and varying acts of inappropriate behavior have transcended every sector of our professional world. With a deluge from Hollywood and politics, and the private workforce, accusations have inundated our feeds and mass media. This harassment watershed has not only been felt within…

November 16, 2017

If you are not familiar with the EB-5 program started in 1990 to give green cards to certain qualified investors in the United States, then you may not have been alone a few years ago. Currently, the EB-5 program has since exploded since its inception and now hits its quotas consistently each year. The program…

October 10, 2017

Government requests come in multiple forms. They can come in as requests for client information or even in the form of investigating your company or your employees. Requests for Client Information General Rule to Follow Without understanding the nuances of criminal and constitutional law and having to cite Supreme Court cases, any government requests for…

August 24, 2017

Nasir and Matt suit up to talk about everything pertaining to employee dress codes. They discuss the Federal laws that govern many rules for employers, as well as state specific nuances in California and other states. The two also emphasize the difficulty in identifyingreligious expression in dress and appearance, how gender-related dress codes have evolved…

June 28, 2017

Nasir and Matt discuss the life cycle of a negative online review. They talk about how businesses should properly respond, how to determine if the review is defamatory, the options available to seek removal of the review, how to identify anonymous reviewers, whether businesses can require clients to agree not to write negative reviews, and…

June 7, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Mattbreak down social media marketing withguests Tyler Sickmeyer and Kyle Weberof Fidelitas Development. They first discuss contests and promotionsand talk about where social media promotions can go wrong,when businesses are actually running an illegal lottery, and the importance of a soundterms and conditions. Next, they…

April 3, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Matt go in depth with the subscription box business. They discuss where subscription box companies have gone wrong(4:30), the importance of a specifically tailored terms and conditions(6:30), how to structure return policies (11:45), product liability concerns (14:45),the offensive and defensive side of intellectual property (19:00),…

February 1, 2017

Nasir and Matt discuss the suit against Apple that resultedfrom a car crashed caused by the use of FaceTime while driving. They also discuss howforeseeable use of apps can increase liability for companies. Full Podcast Transcript NASIR: Hi and welcome to Legally Sound Smart Business! I’m Nasir Pasha. MATT: And I’m Matt Staub. Two attorneys…

January 5, 2017

The guys kick in the new year by first discussing Cinnabon’s portrayal of Carrie Fisher as Princess Leia soon after her death, as well as other gaffes involving Prince and David Bowie. They alsotalk about right of publicity claims companies could be held liable for based on using someone’s name or likeness for commercial gain.

December 22, 2016

Nasir and Matt discuss the recent incidentat a Victoria’s Secret store where the store manager kicked out all black women after one black woman was caught shoplifting. They then each present dueling steps businesses should take when employees are accused of harassment.

December 8, 2016

Nasir and Matt return to talk about the different types of clients that may have outstanding invoices and how businesses can convert unpaid bills to getting paid.

November 10, 2016

After a long break, Nasir and Matt are back to discuss a Milwaukee frozen custard stand that is now revising it’s English only policy for employees. The guys also discuss how similar policies could be grounds for discrimination and what employers can do to revise their policies.

October 6, 2016

The guys discuss the new California law that allows actors to request the removal of their date of birth and birthdays on their IMDB page and why they think the law won’t last. They also discuss how age discrimination claims arise for business owner.

September 29, 2016

Nasir and Matt discuss the racial discrimination claims surroundingAirbnb and how it’s handled the situation. They also discuss some practical tips for businesses experiencing similar issues.

September 8, 2016

Nasir and Matt discuss whyAmazon seller accounts are getting suspended and banned without notice and how business owners can rectify this situation through a Corrective Action Plan.

August 25, 2016

Nasir and Matt talk about the accusations surroundingfashion giant Zararipping off the designs of independent artists like Tuesday Bassen and howsmaller companies can battle the industry giants.

August 18, 2016

Nasir and Matt discuss Brave Software’s ad replacing technology that has caught the eye of almost every national newspaper and has a potential copyright infringement claim looming. They also welcome digital marketing expert Matt Michaelree to speak on the specifics of what Brave is attempting to do and whether it has the answers moving forward.

July 28, 2016

Nasir and Matt discuss the sexual harassment lawsuit filed by Gretchen Carlson against Fox CEO Roger Ailes. They also talk aboutthe importance of sexual harassment training and properly handling such allegations in the office.

July 15, 2016

Nasir and Matt talk about the changes at Starbucks that have led to many disgruntled employees and customers.

We represent businesses.
That’s all we do.

Oh, and we love it.

We love our work. We love reviewing that lease for your new location. We thrive on closing that acquisition that nearly fell through. We’re fulfilled when we structure a business to grow, raise capital, and be legally protected.

We focus on developing close relationships with our clients by being like business partners. A partner who provides essential, personalized, proactive legal support.

We do all of this without utilizing the traditional billable hour model. You pay for the value we bring, not the time spent on calls, emails, and meetings.

Our team is made up of attorneys and staff that share these values and we are retained by clients who want the same.

Pasha Law PC operates in the states of California, Illinois, New York, and Texas.

Meet Our Team

Fractional General Counsel Services

Pasha Law Select offers the expertise of a high-end general counsel legal team for every aspect of your business at a fixed monthly rate. Pasha Law Select is deliberately designed to allow our legal team to be proactive, to anticipate, and to be comprehensive in serving our clients. To be great lawyers, we need to know our clients. We can’t know our clients unless we represent a select number of clients in the long-term. This is Pasha Law Select.

Learn More