Wait, can you trademark a hashtag?
On Friday morning, Edmond Active magazine took to Twitter to ask users to stop using the hashtag #ShopEdmond, claiming it was a trademark.
The Internet being what it is, the post caused a moderate uproar Friday morning on Okie Twitter. Some added the hashtag to existing memes. Others offered consolation prizes to the creators. But at the heart of the matter was an unanswered question: Can you do that? Is it possible to trademark a hashtag?
"It depends," said Emily Campbell, an intellectual property attorney at the Oklahoma City law firm Dunlap Codding.
If a company uses its own name as a hashtag on Twitter — #Nike or #Apple, for example — that company would likely be able to protect the trademark, Campbell said. But for a more generic phrase like #ShopEdmond, the situation is less clear.
Sherri Hulter, publisher of Edmond Active, told Oklahoman business reporter Brianna Bailey that she registered #ShopEdmond as a trademark with the Oklahoma Secretary of State's office in 2011, when the magazine began using the phrase in marketing and advertising. Hulter said she didn't intend to keep the public from using the hashtag, but only to prevent a handful of Edmond businesses who don't advertise with her from using it to promote their brands.
But Campbell said words and phrases that are trademarked at the state level generally aren't subjected to the same level of scrutiny as those submitted for federal copyright.
Recent case law has suggested that hashtags are no different than a URL, or even a street address — a piece of information to direct people to a certain location, Campbell said. That being the case, they likely wouldn't be protectable by trademark.
It gets more complicated if the hashtag itself is a key part of the company's brand, Campbell said. The same way some companies like Match.com use their web addresses as their names, a company could adopt a hashtag as an integral part of its brand, she said.
But that doesn't appear to be the case with Edmond Active, she said. If the magazine wanted to enforce its trademark through legal action, Campbell said she thinks it's unlikely they'd get very far.