It is an undisputed fact that the social media platforms have become indispensable marketing medium for brand owners. Especially after hashtag emerged as an online marketing tool, interest in registering hashtag trademarks has gone up.

Recent research by Clarivate Analytics (formerly Thomson Reuters CompuMark) shows that while just seven companies submitted applications for trademark-specific hashtags in 2010, the number of such applications has been rising steadily, spiking in 2016 with a 64 percent annual increase and some 2,200 applications to register trademark-specific hashtags filed globally.

Social media has become a wildly popular means to stimulate interest in and reactions to any event, product or service. They are built around a culture of sharing and openness, and “real-time” marketing. While these tools have become a normal feature of the digital media, the sharing culture on which they depend can present some intellectual property-related challenges.

What is registerable and what is not, as a trademark?

 A trademark is something which is capable of distinguishing the goods and services of one company from those of another. In sum, 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, used in conjunction with a product name or campaign tagline it may function in the same way as a trademark and be registerable as such.

Used in this way, a hashtag is a simple yet powerful means of stimulating interest in or reactions to an event, product or service. But while such use can promote a brand, product or service, generate sales and boost brand recognition, it does not automatically turn a brand name or advertising slogan into a registerable trademark.

So when exactly is it possible to register a hashtag used in a marketing campaign as a trademark? Guidance from the 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 of service only if it functions as an identifier of the source of the applicant’s goods or services.” #makeitcount(nike), #smilewithacoke (The Coca-Cola Company) #McDstories (McDonalds) are few hashtags which achieved the status of registered hashtag trademarks.

In the United Kingdom, a mark is registerable if is distinctive and has the capacity to individualize the goods and services of a particular undertaking. If such a link exists and the mark does not communicate a message that could apply to any other undertaking then, as with other trademarks, a hashtag-based mark is registerable.

Grounds to attain the status of hashtag trademark:

1)     Extensive usage in social media

2)     Prove that the hashtag has acquired distinctiveness.

3)     Protects the goodwill of the a trader

What amounts to infringement of hashtag trademark?

It is pertinent to note that proving that a company has acquired the required goodwill in the hashtag for the right to stop someone else from using it is likely to be challenged before the Court.

When the use of the hashtag trademark suggests any sort of connection or link with the trademark owner or creates a likelihood or association with the trademark owner, then there maybe be grounds for infringement. It is pertinent to note that if a post contains the hashtag trademark merely for the purpose of promoting the intended social media message, it does not amount to infringement.

Conclusion:

Hashtags are simple yet great way to promote a business or product or service or event etc. It stimulates interest in a marketing campaign. It is, when we contemplate the trademark perspective that stricter and rigorous scrutiny becomes necessary. All said and done, it is advisable to use #hashtags with caution…#cautionwithtrademarks.

 
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