Should Trademark Law Protect Fashion Hashtags?

WWD recently published an article exploring the importance of hashtags and trademark protection to retailers, available here.  To recap:

Brands often use hashtags for their marketing campaigns.  For example, Madewell’s #everydaymadewell, Hudson’s #letyourselfgo, and Revolve’s #revolveme encourage ongoing conversations between retailers and their customers.  Because hashtags invite customer interactions, brands also recognize that hashtags can be valuable digital properties and are increasingly seeking protection for them.

The United States allows companies to register a hashtag with the USPTO if it functions as an identifier of the source of the brand’s goods or services.  According to a recent Thomson Reuters report, “#CanWeTrademarkIt?,” the USPTO received 1,398 trademark applications for hashtagged terms last year, up from just seven in 2010.  The study notes that clothing, footwear, and headgear are the most common classification of good and services with trademarked hashtags, with more than 800 so far.  According to the author of the study, by registering their hashtags for trademark protection, brands have legal recourse against wrongful use of those trademarks by other parties using them for commercial gain.  He also notes that brands aren’t likely to trademark every hashtag they use, due to the cost of registering, the time it takes, and the global reach of social media.

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