Hashtag trademarks - What is a hashtag #?
You may already be familiarized with this term. A hashtag is a way to label content through social media platforms. It helps others who are interested in a certain topic quickly find content on that same topic through a social media platform.
Hashtags had no use in the past when it came to trademarks or branding. But since Twitter came out in 2006, hashtags have grown to become so much more than a tool to identify messages on a particular topic. Nowadays, the hashtag has become common practice in social media posts, spreading across platforms including Twitter (of course), Instagram, Facebook, Pinterest, etc.
According to recent reports in the Wall Street Journal regarding hashtags, 1,398 hashtag trademark applications were filed globally in 2015, compared with only 7 in 2010 and 103 in 2014. These statistics suggest that hashtags are of important value and that they call for protection since social media is a must in our daily lives.
The UK had the fourth highest number of hashtag trademark applications (115), behind the US (1,042), Brazil (321) and France (159). Although these will apply mainly to Twitter, the use of hashtags has been adopted by users of Instagram, Facebook and Pinterest amongst others.
This has led to one question, if I register my trademark to have it protected from copying and fraud, can I register a #hashtag? And our answer to this is "#yessiree".
Can you register hashtag trademarks #?
First things first - What can or cannot be registered as a trademark? A trademark is any sign capable of being represented graphically that may allow determined products and/or services to be identified with an individual trader, provider or source, whether this is a person or legal entity. In other words, it allows consumers to identify the source of a product or service.
While a #hashtag alone is a generic symbol with no source-identifying significance, if you add a word or phrase, this can help identify digital content on a specific topic, product and/or service.
If a hashtag is used this way, although it looks simple, it can be a powerful tool to help trademark owners stimulate interest in their products or service. But, even if this does increase brand recognition or boost sales, it does not automatically turn a brand name into a registrable trademark.
When can a hashtag be included as part of a trademark? Well, each country has its own requirements and specifications. We’ll look into this in the following paragraph.
Registering a hashtag trademark #
Let’s take a look at the requirements in some countries regarding hashtags.
USA and hashtag trademarks
The trademark manual of examining procedure of United States Patent and Trademark Office (USPTO) states:
“A mark comprising of or including the hash symbol (#) or the term ‘hashtag’ is registerable as a trademark or service mark only if it functions as an identifier of the source of the applicant’s goods or services.”
Australia and hashtag trademarks
The Intellectual Property Office of Australia will allow a hashtag trademark if a hashtag itself has become trademark material for a business.
For example when a business and its customers have used that hashtag so much that consumers recognise the hashtag as part of the brand. In this case it could be considered trademark material.
If the # symbol is followed by words that other businesses would need to use; it's unlikely to be acceptable. For example, a clothing business wouldn’t be able to register #babyclothing because this describes the type of clothing the business sells.
United Kingdom and hashtag trademarks
In the UK, a mark is registrable if it is distinctive and has the capacity to individualize the goods and services of a particular undertaking.
The same goes for hashtags - If a hashtag complies with these requirements, then it can be registered as a trademark.
Worldwide hashtag trademark practice
All countries have specific requirements regarding trademarks.
However, if you plan to register a #hashtag, you should know that a #hashtag that wants to be considered as a trademark has to fulfill two aspects: graphic representation and be distinctive.
It is highly recommended to always consult trademark attorneys on how to protect hashtag marks.
Steps to registering hashtag trademarks #
First, like regular trademarks, it is of vital importance, before registering a #hashtag, to perform a trademark search, which guarantees that our #hashtag is not identical or similar to a registered trademark, since in that case, we would be infringing the trademark rights of a third party.
If the chances of success on the trademark search are positive and you decide to proceed with filing an application, doing so is pretty simple. Again, depending on the country, there may be some requirements and documentation needed.
Finally, once the application has been submitted, all you need to do is wait. If all goes well, your trademark should be registered successfully (according to the timeframe in the country you applied for)!
Above all, before registering a #hashtag or any brand it is always good to have professionals who can advise you on the steps to follow before venturing into the subject of registration, which can make you lose time and money, if you don't manage it properly.
If you have doubts about registering a #hashtag, contact us. iGERENT's Trademark Consultants can help you!
Author: Solange Ramirez, Trademark Consultant @ iGERENT