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The Zest

Can You Trademark a Slogan, Catchphrase or Hashtag?

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"I've got a tagline everyone remembers. Can I trademark it? What about my catchphrase, or the hashtag my community uses?" Yes, any of them can be a trademark, as long as it works like one. The test is whether buyers read the phrase as a sign of who the product or service comes from, or just as a message. Phrases that sound like a common saying, a sales claim or a decoration get refused, and hashtags get the same test with a few twists of their own.

Here's how the USPTO draws the line.

A slogan is a trademark when it points to you

Federal law defines a trademark as any word, name, symbol or device, or any combination of them, used to identify your goods and distinguish them from everyone else's. A slogan is just words, so nothing stops it from being a mark, and a brand can register its tagline separately from its name.

This matters more than people expect, because copyright won't help. The Copyright Office's rules list words and short phrases, including names, titles and slogans, as material that can't be registered. For a short phrase, trademark is the only federal protection on the table.

But trademark protects a phrase only for what it does as a brand. The question the examining attorney asks is how the relevant public would actually perceive it. If buyers would see it as information, a common expression, or a design on the product, it fails to function as a mark, and it gets refused no matter how original it feels to you.

The phrases that fail: information and widely used messages

The examination manual sorts the problem phrases into a few buckets.

Information about the product. Wording that just tells buyers something about the goods, including big claims of superiority, isn't a brand. THE BEST BEER IN AMERICA was held unable to function as a trademark for beer. It's a boast, and buyers hear it that way.

Widely used messages. Social, political, religious and inspirational phrases, and everyday expressions, get refused because buyers are used to seeing them on products from all kinds of sellers. They read them as the buyer's own sentiment, not as a source. ONCE A MARINE, ALWAYS A MARINE failed for clothing because it's a common Marine motto. I ♥ DC failed because it had been used for years by a large number of merchandisers. I LOVE YOU on bracelets read as a term of endearment. WHY PAY MORE! was found to be a common advertising slogan.

The rule of thumb in the manual is simple: the more commonly a phrase is used, the less likely buyers are to see it as a trademark. And small changes don't rescue it. A variation of a widely used message fails too if it carries the same sentiment.

The harder news is that these refusals don't have easy fixes. Showing the phrase on a hang tag or label doesn't overcome it. Years of sales and advertising generally don't either, and neither does moving the application to the Supplemental Register. If the phrase can't point to a single source, there's nothing to register.

Merch and the big-print problem

Creators run into a second refusal: ornamentation. When a phrase is printed large across the front of a T-shirt, a tote or a mug, buyers tend to see it as the design, not the brand. The manual tells examiners to weigh the size, location and dominance of the wording on the product. A small, neat mark over a shirt pocket is more likely to read as a trademark than the same words splashed across the chest.

That doesn't mean a catchphrase can never be a merch brand. It means the catchphrase has to be used the way brands are used: on the neck label, the hang tag, the product name in your shop, the name on the packaging. If your phrase is distinctive and you use it that way, it can work. If it's a common saying, no amount of label placement will make it yours.

Hashtags: the # does nothing on its own

The USPTO treats a hashtag mark like any other mark. It's registrable only if it identifies the source of your goods or services. The # symbol, and the word HASHTAG, generally add nothing, much like .com at the end of a name. Put a # in front of a descriptive word and you still have a descriptive word: #SKATER was given as an example of a mark merely descriptive of skateboards.

When the wording after the # is distinctive, the mark can register. The manual's examples include #SLUGGERTIME for T-shirts and #DADCHAT for family counseling services.

The trap is in how you use it. If your only proof of use is the hashtag doing hashtag things, tagging and sorting posts on social media, the public won't see it as a brand. The manual's example: #SEWFUN for sewing instruction, shown only as a tag organizing user comments on a social site, has to be refused. A branded community hashtag is great marketing. It becomes a trademark when it also shows up on the product, the packaging or the page where people buy, as the name of what you sell.

And putting a TM next to a common phrase doesn't turn it into a brand; what the TM and ® symbols mean is a separate topic.

How to pick a phrase you can own

Skip the inspirational quote, the quality claim and the saying everyone already wears. If your audience could find the same words on a hundred other products, buyers won't connect them to you. Choose something only you would say, and use it consistently, in the places a buyer looks for the brand.

Remember that the same scale that ranks names ranks slogans. A phrase that describes what you sell is weak, and weak names are harder to protect. And search it before you print it. A tagline can conflict with someone else's mark just as easily as a brand name can, so a clearance search before you file applies here too. A slogan is its own application, separate from your brand name, with its own fees.

If you've got a tagline, catchphrase or hashtag you'd like to protect, you can see how the search and filing packages work on the services page, and the FAQs page answers most of what comes up before a first call.

Book a free 15-minute discovery call with the attorney (opens in a new tab)

(No legal advice is given on the discovery call. It's a chance to tell me what you're building and hear how the process works.)

Sources

This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

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