By Natasha Jean-Pierre
Over the past five years, hashtags have been used on virtually all social media platforms
to promote, inform, and inspire others to be a part of the change they want to see. Hashtags have
found a permanent place in our society for social activism and justice. The #Blacklivesmatter
hashtag ignited a global campaign by highlighting the violence, racial inequality in the criminal
justice system, systemic racism, and police brutality that black people face in America.
In October 2017, after sexual misconduct allegations were made public about Harvey Weinstein,
brave and fearless women rocked the entertainment industry with #Metoo. These women
couragesly shared their stores about the sexual harassment and sexual assault they endured at the
hands of powerful producers, executives, and creatives. The #Metoo movement also allowed a space for women outside of the entertainment industry to share their experiences as well. #Blacklivesmatter and #Metoo hashtags have notably sparked movements that challenge thestatus quo. But how will these movements be affected when entities try to capitalize off thesesocial justice movements by trademarking these hashtags?
According to the Trademark Manual of Examining Procedure, Hashtags are registrable as a
trademark or service mark only if it functions as an identifier of the source of the applicant’s
goods or services. The United States Patent and Trademark Office (USPTO) also considers the
following when deciding to register a hashtag as a trademark:
• Placement of the hash symbol in the mark
• How the hashtag is being used
So what does this mean for hashtags such as #Blacklivesmatter and #MeToo?
It is likely that the USPTO will reject applications that attempt to trademark hashtags
from social justice movements. As of February 2018, 15 trademark applications for Black Lives
Matter have been submitted to the United States Patent and Office. Of those applications, zero
have been registered. The activists behind the Black Lives Matter movement have not only
renounced business incorporation but they have renounced trademark protection for the phrase.
To date, they have not attempted to privatize the phrase Black Lives Matter outside of the
acquisition of a domain name and use of the phrase for social media accounts. Under Trademark
law, an organization can own a phrase that is being used to identify that organization and
distinguish it from others offering the same or similar services.
Black Lives Matter may have had the potential to be trademarked during its initial inception in 2013 because it was not fully associated with a social justice movement at that time. As it stands today, it would be difficult or the original activist behind the Black Lives Matter movement and hashtag to
trademark the phrase. The phrase has become so diffused that it cannot refer to only one
organization and distinguish that organization from the countless others pursuing similar
goals and efforts. Additionally, no one has the right to police the use of the phrase.
In October 2017, Hard Candy, the beauty brand that is exclusively sold at Walmart
filed a trademark application for the mark “#MeToo” to sell cosmetics and fragrances. In
January 2018, when it was reported that Hard Candy was trying to secure the exclusive right to
use #METOO as a brand. The company was flooded with criticism on social media with people
from the global community accusing Hard Candy of being opportunistic and cavalier. Hard
Candy ultimately issued a public statement and voluntarily abandoned their trademark
Kristin Johnson, spokeswoman at Sprout Social, stated “Me Too and similar movements
are often about deeply human and personal stories — something brands simply can’t replicate”. I
agree. Trademarking a hashtag is a huge disservice to activist trying to empower and create a
space for the marginalized. But it is safe to say that corporations and entities who try to profit
from these social justice movements can ruin their reputation with a voice far more boisterous
than the USPTO and that’s the people of the internet.