Trademarks: Amazon Gets Personal While Samsung Lays Some Groundwork

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Our trademark tracking ears perked up this past week when Amazon underwear and Samsung robots popped up on our trademark monitoring search radar! As you know, NameWarden’s powerful trademark monitoring system can watch USPTO applications for any search criteria you like.  We keep tabs on a few of the major tech players.  Here’s what caught our attention.

Amazon Gets Deeper Into Garments… Undergarments…

Looks like Amazon is expanding its product line to include undergarments. One mark, MAE was registered in the bra and panty category. The other, MXG was registered in the intimate apparel category.

The company has been expanding its wardrobe offerings quietly since 2016. They started with a line of 7 in-house fashion lines. In June of this year, they launched Amazon Wardrobe, a try before you buy shopping service and by August they had grown the in-house line to 50 labels. So that trend continues with underwear and loungewear.

Filing Date: 2018-10-11
Company: Amazon Technologies, Inc.
Serial Number: 88152020
Mark: MAE
Description: Class 025 : bras, bralettes, panties

Filing Date: 2018-10-11
Company: Amazon Technologies, Inc.
Serial Number: 88152027
Mark: M X G
Description: Class 025 : Lingerie; intimate apparel in the nature of underwear, chemises, pajamas, robes, slips being underclothing, nightshirts and nightgowns; bras, bralettes, panties, sleepwear, and loungewear

Samsung Lays the Groundwork, Taking on Roomba

Samsung has been growing its line of appliances and Smart Home offerings – like the Samsung Family Hub Smart Refrigerator and the Chef Collection. These recent marks suggest they are laying the groundwork for a new home appliance. While all three registrations fall within the robotic vacuum and dish washing categories, these particular marks (Active Waterjet, Turbospray, and Powersoak) suggest a new dishwasher is on the horizon. Unless, of course, the robots also clean floors. Guess we’ll just have to wait and see!

Filing Date: 2018-10-11
Company: Samsung Electronics Co., Ltd.
Serial Number: 88151096
Mark: ACTIVE WATERJET
Description: Class 007 : Robotic vacuum cleaners; dish washing machines for household purposes; washing machines for household purposes; vacuum cleaners; vacuum cleaner bags

Filing Date: 2018-10-11
Company: Samsung Electronics Co., Ltd.
Serial Number: 88151471
Mark: TURBOSPRAY
Description: Class 007 : Robotic vacuum cleaners; dish washing machines for household purposes; outdoor condensers, namely, outdoor air condensers for air conditioners; washing machines for household purposes; vacuum cleaners; vacuum cleaner bags

Filing Date: 2018-10-11
Company: Samsung Electronics Co., Ltd.
Serial Number: 88151489
Mark: POWERSOAK
Description: Class 007 : Robotic vacuum cleaners; Dish washing machines for household purposes; Outdoor condensers, namely, outdoor air condensers for air conditioners; Washing machines for household purposes; Vacuum cleaners; Vacuum cleaner bags

Want to try your hand at our easy and affordable trademark docketing and defense system? It’s free for the first 14 days! Learn more here.

Is Green Lantern Coming to a Gaming Console Near You?

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Look out fans! We see Green Lantern on the horizon – and it’s not because we’ve been watching too much Big Bang Theory. This month, we spotted a trend with some recent DC Comics trademark filings.  Looks like DC will be rolling out a Green Lantern video game.

Some recent recent trademark filings with the USPTO suggest a Green Lantern comeback.  DC Comics has recently filed intent-to-use (pre-launch) applications to protect the trademark GREEN LANTERN in several categories relevant to computer and video games.

Here is the filing data:

Mark: GREEN LANTERN

Filing Date: 2017-12-21

Company: DC Comics

Serial Number: 87730051

Description: Class 009 : Computer software and firmware for playing games of chance on any computerized platform, including dedicated gaming consoles, video based slot machines, reel based slot machines, and video lottery terminals

Mark: GREEN LANTERN

Filing Date: 2017-12-21

Company: DC Comics

Serial Number: 87730056

Description: Class 028 : Gaming machines, namely, devices which accept a wager; Reconfigurable casino and lottery gaming equipment, namely, gaming machines and operational computer games software therefor sold as a unit.

Mark: GREEN LANTERN

Filing Date: 2017-12-21

Company: DC Comics

Serial Number: 87730066

Description: Class 041 : Entertainment services, namely, providing an online computer game; Entertainment services, namely, casino gaming; Electronic casino gaming services

Could this mean a new Green Lantern movie at some point? We’ll have to wait and see (and keep our eyes out for similar filings).

Using Name Warden to monitor filings can give you a glimpse into the future.  Want to learn more? Sign-up for a free trial and get set-up in minutes.

Green-Lantern

IP Lawyers’ Busy Year: Boom in VR, AR, IoT

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This year is looking like it’ll be another exciting year for technology companies and their IP lawyers. Virtual and augmented reality will become more prevalent.  Home automation fueled by the Internet of Things (IoT) is expected to blow up. Business Insider projects the revenue of virtual and augmented reality to be at $162 Billion by 2020, up from $5.2 in 2016. Forbes predicts that more enterprise businesses will ramp up their efforts to create IoT and voice controlled products. Among all of this, there are some intellectual property considerations for which IP lawyers should be prepared.

Tech-Trademark-2018

Virtual Reality 

How much of your client’s virtual world is modeled on the real world? Think about it. Are there protected rights in the audio visual presentations inside of those goggles? Are real world brands and products being represented? What about likenesses of people? Virtual or not, trademark and copyright laws still need to be considered.

Questions surround what VR platforms should allow their users to do. For example, can their avatars be created in the likeness of celebrities? Or Mickey Mouse or Luke Skywalker? Can they open up shops and sell t-shirts with real-world logos on them? There should be careful consideration into user agreements and the enforcement of the rules. It seems likely, but not certain, that platform owners will be protected from a user’s copyright infringement by the Digital Millennium Copyright Act.

Then there’s content and source code. The person or entity that created the source code will ordinarily have rights to that code. But how much does that cover? What about the content created by the user within the virtual world?  Like any platform or framework for communications and content, the VR systems that grow this year will attempt to define their own rules and stake out their own protections.

Developers and their counsel will need to pay attention to both patent law and copyright law to make sure they are not infringing or copying anyone else’s intellectual property. One great example of that is the Zenimax vs. Occulus law suit in which Facebook ended up shelling out $500 million for IP theft.

Augmented Reality

The legal issues surrounding augmented reality (AR) differ from those in VR. Augmented reality is based in reality. There are no virtual worlds, just layers of virtual reality on top of reality. For AR, one big question is the implications of directing users to interact with a certain brand. Do you need to give companies/brand/third party an opt-out?

What about the use of buildings, monuments, and landmarks?  In Pokemon Go, Niantic was careful to build a database of user generated images for their game. But what if they hadn’t? Under the Copyright Act, buildings constructed before November 30, 1990 are not subject to protection. However, even if the building is protected, the photographer’s exception codified in Section 120(a) of the Copyright Act may apply. There’s also the Digital Millennium Copyright Act (DMCA), which may protect AR software and platform developers in the event that they receive notice of copyright infringement, but seems likely to leave content creators and individual users on the hook for any infringement issues.

Consideration also needs to be made for overlays. Is the overlay a transformative use of an original copyrighted material? Does the app encourage the use of or engagement with protected copyrights in an infringing manner?  What happens if you cover up signage? Does a named sponsor of a building have any rights against third parties (not the building owner) if their name gets covered up or a competitor’s name placed over top of it within an AR view?

The Internet of Things

Gartner predicts that by 202o, there will be 20.4 billion IoT devices in the world. All of that connectivity could get a little dicey when it comes to intellectual property. If your client’s devices need to work with other systems, IP lawyers and their clients will need to work with those manufacturers to comply with the relevant standards and make sure there are no overlapping utility patents.

If one IoT framework becomes prevalent, it could become the backbone of other IoT technologies, with potential infringement happening along the way.

According to IP Watchdog, “For a company in the IoT industry — especially now, when so much is in flux — this means that any other company (even one in a completely different industry) could be infringing your patent. Or on the other hand, you could be infringing another company’s IP without knowing it.”

Technology will always keep IP lawyers on their toes. It’s important to stay on top of potential legal issues both for clients and for future clients.

Merely Ornamental? When a Decoration Is Not a Brand

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‘Tis the season for merchandising! Your house, office, and yard may be full of holiday ornamentation but trademark applicants beware.  If something is deemed to be “merely ornamental,” that’s grounds for the USPTO to refuse your application to register your mark.  

Ornamentation is an issue that trips up a lot of applicants, especially for t-shirts, coffee mugs, bumper stickers, and other printable merchandise.  The issue comes down to whether the wording or logo is being used as a trademark.

“Merely Ornamental” Refusal 

A “merely ornamental” refusal happens when the USPTO refuses registration because the sample, or “specimen” is deemed merely as an “ornamental or decorative feature” on the goods rather than as a trademark to indicate the source of goods.

The basic concept here is this: just because you have shirts made up with your logo on it does not make you an apparel company. Say for example Name Warden had shirts made to go to a conference. Because Name Warden is not a t-shirt company, the mark on the shirt is merely ornamental.  We have not become an apparel company, so would not be able to get our mark registered in Class 25 for apparel.

Trademarks have to do with the brand of a product and its maker, and the real point of reference is not the front of the shirt but inside the back collar or on a tag hanging off of the sleeve. The size, location, dominance, and significance of your mark as applied to the goods are all factors in the USPTO’s determination of whether your mark functions as a trademark.

If, for example, you used a small insignia or shape on the breast pocket of your shirts, that could be considered a trademark because it creates the “commercial impression” of a trademark. If that same symbol was enlarged and placed across the front of the shirt, it could be considered ornamental.

 

How to Avoid a Refusal

The USPTO will refuse your mark if it is deemed merely ornamental or decorative. In their words, “when use of your mark does not clearly identify the source of your goods and distinguish them from the goods of others,” the mark is considered ornamental.

Examples of Ornamental use include:

  • A quote across the front of a t-shirt
  • An image on the main surface of a shirt, hat, or bag
  • Embroidery embellishments
  • Floral patterns
  • Everyday expressions or symbols

Remember, it’s all about the mark being perceived as an identifying mark of the manufacturer.

Quick tips

  • Consider the placement of your mark. Location plays a huge factor in the USPTO’s decision. Pockets, breast areas, and tags are places where trademark use is expected.
  • Size and dominance of the mark matters. Small wording or design features are usually an indication of a brand mark and not decoration.

 

What to do when it happens

If you receive an Ornamental refusal, all hope is not lost. You can use the Trademark Electronic Application System (TEAS) to respond in either a Non-final Office action or a Final Office action.

You can also submit a substitute specimen – basically an example of the product in a different, non-ornamental form. Here’s the thing: you need to be able to prove that the substitute specimen(s) “was/were in use in commerce at least as early as the filing date of the application, prior to the filing of the amendment to allege use, or prior to the expiration of the filing deadline for a statement of use,” according to the USPTO.

The bottom line is when it comes to trademarking consumer goods, it’s not about design or content, it’s about branding of the company that makes the goods. The mark needs to identify the manufacturer of the product, not boldly display a logo or design. If you’re a t-shirt manufacturer, add your mark to the tag, pocket, or other brand-communicating location. If you’re a trademark docketing and defense service, slapping your logo on a shirt does not make you an apparel company. And, if you have trademarks to file, don’t do it the hard way. Use Name Warden to automatically file, register, and monitor your marks.

The Slants Trademark, The Lanham Act, and What it Means

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“One man’s vulgarity is another mans lyric” quoth the 1971 U.S. Supreme Court free-speech case.

That 1971 free speech ruling is what came to mind when the U.S. Supreme Court delivered their ruling in Matal v. Tam. This Supreme Court battle was an appeal to reverse the USPTO’s decision to deny the trademark application for the mark “The Slants”. Registration for the Slants trademark was refused by the USPTO for violating the Lanham Act’s disparagement clause. The Supreme Court ruled that ultimately the government may not refuse to register potentially offensive names.

According to Justice Samuel A. Alito Jr., “We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The Supreme Court unanimously declared that the Lanham Act’s disparagement clause was unconstitutional. The clause prohibited the registration of any mark that may “disparage  … or bring … into contemp[t] or disrepute” any person, institution, belief, or national symbol.

Now that the clause has been ruled unconstitutional, there are a lot of questions surrounding what it could mean for future and current trademark applications. In fact, prior to the ruling, a number of trademark applications were suspended by the USPTO pending resolution for this case.

What this ruling could mean

There are several ways this ruling could impact the IP world.

  1. The Redskins will probably be able to get their trademark registrations back.
  2. We might see an up-tick in applications to register rude and crude marks.
  3. The restrictions that have been placed on marijuana related trademarks may be called into question, but seem unlikely to change. Refusal still seems lawful for those marks, since marijuana is still illegal under federal law.

Here’s the bottom line: The Supreme Court is firm on the belief that the government should not decide what is moral, immoral or offensive when it comes to private speech. Restricting trademarks on the basis of government opinion would violate the First Amendment to the U.S. Constitution.

Drone Trademark Filings: Droning On or Taking Flight?

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In the past couple of years, drones and related legal issues surrounding drones have been hot topics. Major companies like Amazon and Google are coming up with innovative ways to use them, drone enthusiasts are forming groups and meetups, and this past holiday season, they were high on many lists. In fact, 1 in 5 people said they wanted a drone for Christmas this past holiday season, and it was estimated that 1.2 million Americans found them under the tree on Christmas morning. (How many of them were found stuck in some other tree later that day? We don’t have numbers on that.)

Meanwhile, the Federal Aviation Administration and local and state authorities have been struggling to figure out how to regulate, or how not to regulate, drone usage.

As the business world figures out how it will use drones to increase efficiencies, add a new marketing gimmick, or develop new and better content and data from overhead, drones will continue to grow in use, sales, and legal questions.  Here at Name Warden, we work with trademarks.  So we were interested in whether there had been a big uptick in drone trademark filings as new companies and new products got into the act.  We’ve pulled and parsed the USPTO data on drone trademark filings over the years, like we’ve done previously for the uptick in craft beer branding, and for vaping products.  Here’s what we found.

Drones flew into the scene earlier than you think

The first mention of “Drone” was in 1958! SN: 89000009 RADAR TRACKING AND CONTROL SYSTEM FOR COMBAT SURVEILLANCE DRONES 

Most of the filings we found from 1958 until about 1991 were for military purposes. That’s because the first drone was created for military purposes (more on that below).

Drones can do what?

We learned that the term “drone” does not necessarily refer to flying drones. Here are two examples:

  • SN: 78241320 “industrial drones for loading and unloading materials”
  • SN: 85078396 AQUA DRONE

Buzz off!

We also found filings for bee products in 1984.

SN: NATURAL BEE PRODUCT OBTAINED FROM DRONE LARVAE AND LARVAL FOODS, SOLD AS AN INTEGRAL COMPONENT OF COSMETIC PREPARATIONS, HAIR LOTIONS, AND MOUTH HYGIENE PREPARATIONS

The word drone in Old English is actually a term for the male honeybee. The first use of the term drone in aviation was in 1936. U.S. Navy Commander Delmer Fahrney was directed to develop target airplanes that were pilotless. The project was inspired by the Royal Navy’s target aircraft, “Queen Bee”. Target airplanes were used in World War II as practice targets for fighters and antiaircraft guns. In the bee world, drones have sort of a mindless existence. The naming of these Remotely Piloted Vehicles (RPVs) was a nod to that of drone honeybees, who seem to have no mind of their own.

Drones in Hollywood

Drone trademark filings for equipment used in movies started popping up in 2007. A typical product description read “Motion picture and television film production, namely, providing remote controlled drone helicopters equipped with specialized cameras for filming purposes; Aerial photography.”

Into the hands of the people

It’s not until 2010 you see marks for drone sales, in the sense that we now think of the word “drone,” in particular with filings for retail distributorship services. This is where the uptake in filings really begins. Here’s a chart showing number of filings per year from 1958 until now.

Drone-Filings

Here’s a closer look at filings starting in 2010 with the deal development of retail channels for remote-controlled “drone” aircraft.

Drone-filings

The big dip this year is because it’s early yet in 2017, with 34 filings so far in 2017 as of the date we collected our data. Combing through filings we see drones for photography, toys, education, surveillance, agricultural surveying, delivery, military use, medical purposes, accessories such as landing pads, drone camps, and catchy phrases like “Do not drink and drone.” The future of drones is wide open!

High Hopes Blunted for Marijuana Trademarks

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It’s a better time than ever to sell weed.  The past few years have been exciting for marijuana entrepreneurs. Since medical marijuana-related-trademarkmarijuana is now legal in 28 states, cannabusiness has been booming. But being in the marijuana business is not exactly easy street. While it may be lawful in your state to own and run a marijuana business, federally registering marijuana trademarks is not. Pot is still on the federal DEA Schedule I of controlled substances, and the USPTO is governed by federal law.

Marijuana Under Federal Law

According to the Controlled Substances Act, “any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, possession of which is unlawful under the CSA.” This is why the USPTO has consistently refused to register marijuana related trademarks.

For example, the USPTO denied the marijuana related trademark application of JUJU JOINTS. The denial was based on the “lack of lawful use of the mark in commerce under Sections 1 and 45 the Trademark Act, 15 U.S.C. §§ 1051, 1127.”

The attempt to trademark “Herbal Access” under goods for use with “retail store services featuring herbs” is another example. This marijuana related trademark was an attempt to use “Herbal” to describe marijuana. According to Law 360, “the Trademark Trial and Appeal Board agreed with trademark office that the services were ‘unlawful’ and refused the application.”

The USPTO is on (ahem) high alert.  Some non-marijuana trademarks have been denied because they appeared to be marijuana related. One example is the mark “THCTEA” for use with tea-based beverages. THC was meant to be an abbreviation for “Tea Honey Care” and did not contain any marijuana. The mark was denied because the initials suggest the abbreviation for tetrahydrocannabinol (the active chemical in marijuana). The USPTO cited Section 2(e)(1) of the Lanham Act, stating that the mark was “deceptively misdescriptive.”

Acceptable Marijuana Related Trademarks

So what does fly high with the USPTO? The USPTO has granted approval for some ancillary products and services. The USPTO approved these  because the products and services themselves do not contain or facilitate the use of marijuana.

Examples of these approved marijuana-related trademarks are:

  • Technology and tools for the industry
  • Marijuana based news like “High CBD Veda Chews” or “Medical Jane”
  • Cannabis consultancies like “Just Say Yes”
  • Medical marijuana medical referral services like “Dr. Ganja”
  • Marijuana related apparel like “The Marijuana Company”

And marijuana-related patents have been approved in the name of innovation and research. For example, the patent given to Biotech Institute in California for “specialty cannabis plants, compositions and methods for making and using said cannabis plants and compositions derived thereof.”

For those who deal directly in marijuana products, all hope is not lost. Common law trademark rights still protect business owners from others who may infringe, however only within the state.  There are also state registries that can provide some level of protection, though with much more limited geography.

A Timeline of the Epic Budweiser Trademark Dispute

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Some trademark battles take years. Some decades. The trademark dispute between “The King of Beers”Budweiser trademark dispute and the “Beer of Kings”? Almost a century. The Budweiser trademark dispute has been going on for 77 years.

Budweiser Budvar Brewery was founded in 1895 by citizens of Budweis in the Czech Republic and is state-owned.

Anheuser-Busch, a brewery Americans all know very well, got its start in St. Louis in 1852. The Budweiser we all know and have likely sipped, however, was not a thing until after the 1870s when Adolphus Busch toured Europe to explore European brewing methods. He took exceptional notice of a Pilsener style beer that had become popular in Budweis, a city in the Czech Republic. In 1876, Anheuser-Busch introduced the United States to Budweiser. Because of the company’s early ability to refrigerate and transport bottled beer (something for they are known), the beer became a national beer brand. They registered Budweiser as an invented trademark with the U.S. Patent Office in 1878.

And thus began the dispute. In honor of the most recent ruling, here’s a timeline that shows just how long these two breweries have been fighting.

The Budweiser trademark dispute through the years

1896

Once Budweiser Budvar catches wind that a company in the U.S. has successfully registered Budweiser as a trademark, Budvar  argues that the Budweiser trademark should have never been allowed, because Budvar has been brewing their beer for 500 years.

During that hearing, Adolphus Busch states, “The Budweiser beer is brewed according to the Budweiser Bohemian process… The idea was simply to brew a beer similar in quality, color, flavor and taste to the beer then made at Budweis, or in Bohemia.” This statement is one that has been brought up by Budvar in the many subsequent battles.

1939: Both sides agree that Anheuser-Busch was the first to trademark the Budweiser name and Budvar concedes all territory north of Panama to the American brewer.

1989: Anheuser-Busch begins expanding internationally while Budvar decides to focus on exports. Talks begin on a trademark agreement to divide up the territory around the world.

1994: Budvar decides not to sign the trademark agreement.

1996: Anheuser-Busch registers the Budweiser name with the European Commission and Budvar challenges.

2004: The European Commission grants Budweiser Budvar N.C. with the right to use Protected Geographical Indications “Budějovické pivo” and “Českobudějovické pivo”.

2009: The European Court of First Instance upholds a ruling refusing AB InBev permission to register the Budweiser brand as its trademark. AB InBev keeps the Budweiser or Bud name in 23 of 27 European countries, including the U.K., where courts have ruled both companies can call their beer Budweiser. Budvar is granted exclusive control of the name in Germany.

2010: Anheuser-Busch InBev NV loses their appeal to register its Budweiser beer brand as a European Union-wide trademark.

2010-2011: Budvar wins 88 of 124 disputes and holds exclusive rights in 68 countries, mostly in Europe, preventing AB Inbev from selling its Budweiser brand in some key markets, including Germany.

2012: Budvar rejects an AB InBev proposal for a global settlement.

2013: The UK Supreme Court confirms that both breweries can use the mark simultaneously in the UK.

2014: Budvar loses a decision in Portugal to register its beer under the Budweiser name in the country after AB InBev purchases Budweiser trademarks in Europe from Budweiser Brewery Samson.

2016: Tribunal da Propriedade Intelectual, a Portuguese court in Lisbon, upholds the 2014 ruling prohibiting Anheuser-Busch InBev from selling beer under the Budweiser name in Portugal.

So there you have it. A trademark war that has been going on for 77 years!

What does this mean for pilsner drinkers?  If you want to drink the American version of Budweiser in Europe, you’ll have to order a “Bud” due to trademark agreements. If you want to drink a Budweiser Budvar in America, you’ll need to order a Czeckvar.  Cheers!

 

3 Things DIY Legal Sites Can Teach Trademark Lawyers

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The internet is vast portal of information (and misinformation). On any given day you can pop into DIY-legal-sitesYouTube and teach yourself to garden, or knit, or fix your kitchen sink. Thanks to sites like Canva you can DIY design your own marketing materials. But what about DIY legal services?

Did you just shudder?

We all know they exist and that people use them. A lot of people, in fact. But are they a threat to the trademark lawyers of the world? The short answer: no.

DIY legal sites are not really competition for trademark lawyers because those people were probably never going to hire a trademark lawyer anyways. But there are lessons to be learned from the rise of these sites!

Lesson #1: Their pricing structure

Trademark lawyers would benefit from making their structures more simple and more transparent, so that potential clients aren’t overestimating the cost and going to a DIY legal site out of baseless price fears. Just take a look at popular DIY legal sites like LegalZoom. Their site tells visitors up front what the cost (or price range) is going to be, what the process entails, and what the deliverables are. 

Lesson #2: Their websites

DIY legal sites are sales machines. Take a cue from the genius marketing behind them. Their landing pages have pictures that allow small business owners to easily identify the fact that they are in the right place (and the right price range). Their copy is in plain language and speaks to the pain points they are experiencing (not having your brand protected). There is also a clear call to action for what to do next.

Lesson #3: Use Name Warden

The Name Warden Client Finder service was designed to help lawyers find unrepresented applicants who now have office actions, notices of allowance, or other work to do that they don’t understand because they didn’t use a lawyer for their initial filing. A great opportunity to swoop in and save the day!

They may not be direct competition, but pay attention and you may pick up some good ideas for  drawing potential DIYers over to your practice.

Watch What You Tweet: Hashtag Trademarks are Soaring

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The 2016 Summer Olympics was a wake-up call to marketers and business owners who thought they hashtag-trademarkscould get in on the Olympic buzz by using the popular Olympic hashtags on social media. They may have joined the conversation, but they probably also found a cease and desist letter or email for using trademarked hashtags on their business social media accounts. That’s right, hashtag trademarks are a thing.

2016 is not the first year that hashtags have been trademarked, but it seemed like the first major instance of a hashtag trademark owner cracking down. This piqued our curiosity, so we looked into the filing trends for terms starting with the pound sign (#). We found filings all the way back to 1963! No, they weren’t using hashtags in 1963, those filings were for terms like #1, and a few were for items like #$!? (cartoon cursing?).

The first online use of the pound sign was in the 1990s by IRC (Internet Relay Chat) users. It was used to categorize items into groups. The hashtag as we know it now was invented in 2007 by Chris Messina, who suggested that the symbol be used to organize groups on Twitter. The tweet looked like this:

?how do you feel about using # (pound) for groups. As in #barcamp [msg]??

The purpose was to organize and gather discussions going on at a technology event called Barcamp.

The hashtag has since been used by most of the social media platforms out there and is an important part of every business’ marketing strategy – hence the reason people started trademarking hashtags.

We wanted to see the trademark trends for hashtags so we limited our search to # followed by a letter (to remove all of the non-hashtag “#1” type things), and cut the timeline to 2007. Here’s what we found.

hashtag-trademarks

There have been 452 hashtag terms filed through Day 251 out of 366 days in 2016. If we take that out to the full year, we are on pace for 659 in 2016. Here are some hashtags you might recognize:

  • #Girlboss
  • #HowDoYouKFC
  • #BeYou
  • #RunThisTown
  • #SupportLocal
  • #WalmartElves
  • AT&T Presents #BeTheFan
  • #SrirachaGouda
  • Playboy #Generation
  • #LikeAGirl
  • #IceBucketChallenge (also #ALSIceBucketChallenge)
  • #ThrowbackThursday
  • #CokeCanPics
  • #SmileWithACoke
  • #LifeonMars
  • #RioReady
  • #LoveIsLove
  • #BlackLivesMatter
  • #PaylessShoeSource

It’s clear that hashtag trademarks are becoming more prevalent so watch what you hashtag and make sure your clients start trademarking their own branded hashtags.