#HashtagThis: How Trademarks Come in Handy When You Go Viral

By Mickie Funderburke

#onfleek  #cray #squadgoals  #adulting #turnt #okurr  #periodt

After reading the line above, you may be screaming #yassssss (because a simple yes is not enough) at your screen or you have no idea as to the meaning of any of these words (Google it in your free time).  In the digital age, savvy entrepreneurs like yourself are seeking to establish your brand on social media, hoping to attract the right audience for your business.

Hashtags can be words or phrases, general or unique, in nature while building engagement on your platforms.  

Think of hashtags as keywords that you use in your favorite search engine when researching a business or topic.  Now let’s look back at the hashtags above once again. All of the hashtags mentioned above are unique words that have both become viral on the internet and trademarked, created by everyday people, social media influencers, or celebrities.  

Now, why are we here?  The question is, once you create a unique hashtag that is relative to your business or is the actual name of your business, can you trademark that hashtag? Absolutely!  Trademarks can be a word, slogan, symbol, design, or a combination thereof.

However, before you do all of that, you need to ask yourself several questions before going that route:

  • Do I plan to convert my trademark into other streams of income such as goods, services, merchandise, and products?
  • Will this trademark be used to promote and generate awareness?
  • Will the campaign of my hashtag be short or long term?

Be very careful when you decide to heavily promote your uniquely created hashtag on social media. There have been many cases hashtags like these going viral after the original creator made it public. There are Internet lurkers just waiting for their next “get-rich-quick scheme” who rush to make t-shirts or even worse, file trademark applications for brands they never created.  

This situation happened in 2014 to Kayla Newsome, a college student from Chicago, who goes by Peaches Monroee on social media.  Her video went viral on the departed social media platform, Vine, after referring to her eyebrows as “on fleek.”  Her famous catchphrase joined urban culture lingo making it attractive to celebrities who used the term in their projects, random trademark applications were filed by individuals who had no relation to Newsome, and companies #securedthebag all while she never saw a financial return. In 2017, she began a GoFundMe account to raise funds to file a trademark application and start a cosmetic and hairline business.  She raised over $16,000 and is now the trademark holder for Eyebrows on Fleek but not for “on fleek.”

In good news, rising star celebrities like Cardi B have become hip to the game of securing trademarks. Pop culture fell in love with the Invasion of Privacy star’s animated and often imitated sounds specifically referencing  “okurr.”  Cardi B explained that the sound mimics a pigeon while carrying the meaning of “surprise or approval for something” on the Tonight Show with Jimmy Fallon. Pepsi launched a national campaign which helped catapult the use her trademark to put the world on official notice.  

Did you know that a sound, color, or smell can even be trademarked?  

Weird huh? Not in the world of trademark law.  Do keep in mind, trademarking your hashtag does not stop others from using it within their social media posts.  It does, however, give you the right to file a legal dispute with a third party receiving financial gain by use of your trademark, especially if they are your competition within your respective industry.

Is this beginning to inspire some creative juices within your thinking? While we host quarterly workshops on DIY trademark basics, it is always wise to employ a licensed trademark attorney (also known as a business or intellectual property attorney) to assist you in the process.  Receiving your trademark is not an overnight process.

While one can file an application right away, it can take up to a year or more to receive the clearance of a trademark. A trademark attorney is your checks and balances during the application process giving them the ability to represent you in court and ensure that all correspondence received from the United States Patent and Trademark Office (USPTO) is responded to within a timely matter.  Missed responses to notices can result in the unfortunate denial of your application.

DISCLAIMER: This is NOT legal advice and your reading or engaging with this post does NOT create an attorney-client relationship. Please consult our office!

Lerae Funderburg, Esq. is the Managing Attorney at Funderburg Law, LLC, an Atlanta based business and trademark firm. Lerae has over 10 years of legal experience. As a lawyer and blogger, Lerae keeps her viewers and subscribers up to date with business news, especially in trademark law. If you are local to Atlanta, call and set up a consultation! She would love to hear from you!

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