If you’re a content creator, influencer, or online business owner using social media to build your brand or market your business, you might be wondering if you can trademark your Instagram handle.
The short answer is (in typically lawyer fashion): it depends!
This article dives into when an influencer can trademark their Instagram handle; what makes a username strong or weak for trademark purposes; and how to trademark your Instagram handle.
Kate Cooper Law works with influencers, content creators, and online business owners throughout the trademark registration process. If you want to know whether or not you can potentially trademark your Instagram (or TikTok, YouTube, etc.) handle, schedule a consultation with Kate today.
When Can an Influencer Trademark an Instagram Handle
An influencer can’t trademark their Instagram handle just to own the trademark, it has to function like one first. This means that in order for an Instagram (or other social media) handle to potentially be eligible for trademark registration, 3 things must be true:
- It needs to identify the source of the goods or services being sold
- It must be distinctive (more on that below!)
- It must be used in commerce
The good news is that if you’re an influencer, content creator, or online business owner your Instagram handle probably isn’t just a username. It’s likely the name that you built your brand around, which is exactly the type of thing that a trademark can protect.
There are a variety of different income streams that you can potentially pursue as an influencer. If you’re monetizing your Instagram or other social media accounts through brand deals, affiliate links, content creation, or selling your own products, then congrats! You’re officially running a business and engaging in commerce, and your Instagram handle likely serves as a source identifier for the goods or services that you’re selling.
Here are some common types of goods and services that influencers and content creators sell and the class that they fall into for trademark protection:
- Promotional advertising services for brands (aka brand deals and UGC creation services) – Class 35
- Affiliate marketing – Class 35
- Digital products – Class 9
- Courses – Class 41
- Coaching services – Class 41
- Educational content (blogs, videos, etc.) – Class 41
- Clothing – Class 25
- Physical journals and planners – Class 16
What Makes an Instagram Handle Strong (or Weak) as a Trademark
Not all brand names can be trademarked. As I mentioned earlier, in order to function as a trademark a name has to be distinctive. This is where some creators may run into issues when it comes to trademarking their Instagram handle.
The U.S. Patent & Trademark Office (USPTO) uses the following spectrum when analyzing the distinctiveness of a potential trademark:
Generic:
A generic name is literally the name of the product or service that is being sold. Generic names cannot be trademarked because the USPTO doesn’t want one business to be able to own words that competitors need to use to simply describe their products.
Descriptive:
A descriptive name tells you about the product or service a business offers. Descriptive names are generally rejected by the USPTO, but the rejection can potentially be overcome if you can show that the name has a secondary meaning (aka “acquired distinctiveness”). This means that consumers associate the name as the source of particular goods or services, and it has been in use for at least 5 years.
Suggestive:
A suggestive name hints at something about the product/service without directly describing it. Suggestive names have good potential for trademark registration.
Arbitrary:
An arbitrary names use an ordinary word for something the business has nothing to do with (think Apple selling electronics). Arbitrary names can be trademarked.
Fanciful:
A fanciful name is a word that is completely made up. Fanciful names have the strongest potential for trademark registration.
There are also other restrictions when it comes to names that can be trademarked. For example, brand names that are obscene, immoral, or scandalous; geographical (when the location is connected to the goods or services); or last names alone (unless they have acquired distinctiveness) aren’t eligible for trademark protection
When it comes to the trademarkability of an Instagram handle, generic names like @themakeupcreator or @travelblogger are not going to be eligible for trademark protection. A descriptive name is also likely to be rejected unless you can provide a good argument as to why it should be allowed to be trademarked. Ultimately, the more abstract or made up the Instagram username is, the more likely it is going to be able to be trademarked.
Having an Instagram Handle Doesn’t Mean That You Own the Trademark
A common misconception regarding trademark law is that having an Instagram handle or a large social media following means you have trademark rights to the name, but that’s not the case. Just because you have a certain Instagram handle doesn’t mean that you automatically own (or are entitled to own) the trademark for that name.
In order to fully own a trademark in the United States you need to register it with the USPTO. As we’ve already established, in order to receive trademark protection your Instagram handle has to:
- Be distinctive
- Be used in commerce, and
- Identify the goods or services that you sell
Additionally, the name can’t be “confusingly similar” to another name that is already trademarked by a business that sells similar goods or services. This means that if there’s another influencer or content creator with a similar handle that has already trademarked their brand name, you’re likely going to be blocked from trademarking yours (with that said, you could potentially challenge the mark if you’ve been using it longer, but that’s a topic for a different post!).
It’s important to note that names do NOT have to be identical to be confusingly similar. Names that look or sound similar can potentially pose a problem, even if they aren’t exactly the same.
How to Actually Trademark Your Instagram Handle
Assuming that your Instagram handle meets the basic criteria needed for a trademarkable name, in order to actually trademark it you have to go through the registration process with the USPTO.
This involves:
- Doing a comprehensive clearance search to see if there are any existing trademarks, pending applications, or common law uses for names that may be confusingly similar to yours selling similar products or services.
- Filing a trademark application with the USPTO. This includes identifying the specific class(es) of goods and services that you want to file for trademark protection. Additionally, you will have to submit a specimen showing the name you’re trying to trademark being used in commerce in connection with those goods or services.
- Responding to any office actions that the USPTO examining attorney issues. Depending on the type of office action, this may involve making simple changes to your application, or it may require an in-depth legal argument (for example, showing a descriptive name has acquired distinctiveness).
- Having your application published in the Trademark Official Gazette for 30 days. This gives the public the opportunity to potentially oppose your mark if someone believes the registration will harm their brand.
- Receiving your registered trademark!
The trademark registration process is lengthy and can often take over a year from your initial application to final registration. There are also a number of road blocks that might pop up along the way, which is why it’s a good idea to work with an attorney to assist you throughout the process.
Working with an attorney helps identify any major risks or potential conflicts before filing your application; ensures that your trademark application is filed correctly; and helps you navigate any office actions you may receive.
If you’re interested in seeing whether your Instagram handle can be trademarked and starting the registration process, Kate Cooper Law can help you. Learn more about Kate’s signature trademark registration package and schedule a consultation.
Conclusion
There are a lot of nuances to consider when answering the question “can I trademark my Instagram handle?”
If you’re a casual Instagram user who shares photos and videos just for fun, you’re not going to be able to trademark your Instagram handle. However, if you’re an influencer, content creator, or online business owner using social media to run your business, you may be able to trademark your Instagram (or TikTok) handle if the handle is distinct and helps to identify the goods and services you sell.
If you want to know whether or not your Instagram handle is potentially eligible to be registered as a trademark, schedule a consultation with Kate Cooper today!
The information contained in “Can Influencers Trademark Their Instagram Handle?“ is for informational and educational purposes only. It is not to be construed as legal advice. Reading this article or relying on information from this article does not ever create an attorney-client relationship between you and Katherine Jaquith (aka Kate Cooper). Please speak with a licensed attorney for individual advice.
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