Should I trademark my instagram handle?

The answer to the title above is a very simple: it depends.

I don’t mean to sound too lawyer-ey, but you can google that question and get a thousand different answers. The truth is, there is not one answer to that because everyone’s handle - their moniker- if you will, represents their digital bookmark in this vast field we call social media. That bookmark either signifies the source of your brand OR it may be your cat’s middle name.

Here are the top 5 things to remember when deciding whether to pursue a trademark for your social media handle:

1). Is your handle also your business name?

The USPTO (that is where you get a federally registered trademark) requires that a trademark be a “source identifier” for the thing you are putting “into commerce”. This is hard to translate into today’s social media landscape - but let’s try. Is your handle the same name as what you put out into the world in order to make money? Then yes - you need to pursue a trademark. But, in actuality - you would pursue the trademark on the business, not the handle. For example, you would actually be trademarking your blog, course, podcast, etc. You would not be seeking to just get your mark on the handle.

Social media personas really throw the USPTO trademark examiners for a loop - they don’t know that business model.

The law in this area is a very very hazy grey, with good reason. The pilar of the law as it relates to branding, specifically trademark law, is founded upon an act that dates back to 1946. (The Lanham Act) Now, there have been developments, case law, additional acts, etc. since that time, but the original act that provides an avenue of protection for your brand is super old. I MEAN, OLD Y’ALL. It not only pre-dates social media, it pre-dates the internet and probably was around before your parents were born.

2). Is your handle a regional moniker?

If your handle or even your business name geographically descriptive, it is highly likely your trademark will be refused. Names like “Georgia Peach Party Girl” or “Little Maine Mamma” will be tricky. There are ways to work around this refusal, but generally trademark examiners do not like it and it is harder to get through the registration process.

3). Is your handle consistent across platforms?

I know this is hard - it is hard to be consistent when it seems like every name is gone. If it is possible, keep your handle consistent across platforms and keep it as close to your business name as possible. Remember, what you trademark is what you are actually putting out into the world to make money - or as the USPTO says “into commerce.”

It is highly likely you are operating your socials under your name (totally fine) and then you have a blog or product under a different name. You can go about this in several ways, but you would seek your mark on the “thing” you are putting “into commerce.”

So, for bloggers or content creators, the more consistent you can make your names across the board - the better. It heightens your ability to protect your brand. For instance, if your name is Nicole and you have a blog called “Blonde in the Burbs" it would be good to use the handle of the same name. More consistency equals a greater ability to protect and later license your brand.

It is also ok to have your blog, your podcast, your “thing” using your given birth name. The caveat here is the more generic the name, the harder it will be to get trademark protection. Which brings me to number 4.

4). Is your handle a “mere surname”?

The USPTO will not trademark your brand if it is merely your surname without some “secondary meaning.” I will not bog you down with too much legal jargon here, but basically the USPTO wants your brand name to have an additional element of distinctiveness than just your name. Having a first and last name helps - but an additional element of distinctiveness would be even more likely to gain registration.

If your name is rare or distinctive on its face, congratulations. You are likely eligible to get your mark on it (assuming the other factors work in your favor). I met the coolest influencer last night at an event - her name is Candi Mars. I think that’s an actual shortening of her birth name, but it’s distinctive nonetheless and I think she could get her mark without much trouble.

Now, if your name is Leslie Smith and you have The Leslie Smith Blog … we have to juuuuj that up a bit so that it is distinctive. There is also always the option of registering on the supplemental register - but that is kind of like the “B” team of trademarks. You really always want to be on the primary register.

5). Is your handle already trademarked?

This is probably the most important factor in getting your trademark and really in the creation of your online persona. Is your name already trademarked and in use by someone else in the same type of business as you? The only way to know this is to do a clearance search and that includes more than just googling the name and seeing if the domain is available. There is a clearance process and we spend a bit on it in my Social to Mogul course.

One of my favorite examples of this is LeLe Pons. First of all, I love her and I think she is a complete powerhouse presence on social media. She is a smart business person and obviously has management, so she applied for her mark recently. She was refused by the USPTO because there is a company called “LeLe” that has trademarks on everything under the sun. Going through this clearance process would have been super helpful before she had 43 million followers because now, no chance of getting her mark on that name.

I get it, there is a lot to unpack here. It is possible to unpack it. It’s as important at the beginning of your journey as it is in the middle and the end. You want to be sure your name can be protected before you build your entire digital space around it. These are the things that keep me up at night, worrying about your brand. Taking these steps will taking from being a social media entrepreneur to being a mogul.

Something to think about.