Filings for hashtag marks rose sharply through the 2010s, and the appeal is obvious — a campaign hashtag is the thing consumers actually type. But the hash symbol contributes nothing to registrability, and what you can stop others doing with it is narrower than most brand owners expect.
The trend
Social media platforms have become indispensable marketing channels, and since the hashtag emerged as a marketing tool, interest in registering hashtag trademarks has risen sharply.
Research by Clarivate Analytics found that where just seven companies applied for trademark-specific hashtags in 2010, filings rose steadily and spiked in 2016 with a 64% annual increase — some 2,200 applications filed globally.
Social media is built around a culture of sharing, openness and real-time marketing. That same sharing culture creates the intellectual property difficulties.
What is registrable
A trademark is something capable of distinguishing the goods and services of one undertaking from another’s — allowing consumers to identify the source of a product or service.
A hashtag alone is a generic symbol with no source-identifying significance. Used with a product name or campaign tagline, it may function in the same way as a trademark and be registrable as one.
The USPTO’s guidance puts it directly: a mark comprising or including the hash symbol or the term “hashtag” is registrable only if it functions as an identifier of the source of the applicant’s goods or services.
In the United Kingdom, a mark is registrable if it is distinctive and capable of individualising the goods and services of a particular undertaking. Where that link exists, and the mark does not communicate a message that could apply to any other undertaking, a hashtag-based mark is registrable like any other.
In India, the position follows the same logic. The Trade Marks Act requires a mark to be capable of distinguishing goods or services, and nothing excludes a hashtag — but the hash symbol adds no distinctiveness. The assessment falls entirely on the words. #TheBestCoffee fails for the same reason “the best coffee” fails; a hashtag containing a coined or arbitrary brand element can succeed.
What helps an application
- Extensive use in social media;
- evidence that the hashtag has acquired distinctiveness; and
- that it protects the goodwill of a trader.
The practical point: a hashtag mark is usually only worth pursuing where the tag is campaign-defining and durable, rather than one of many tags attached to a season’s posts.
Infringement — the harder question
Proving that a company has acquired the goodwill in a hashtag needed to stop someone else using it is likely to be challenged in court.
Where use of a hashtag suggests a connection with the trademark owner, or creates a likelihood of association with them, there may be grounds for infringement.
But where a post contains the hashtag merely to promote the intended social media message, that does not amount to infringement. That exclusion is broad, and it covers most of what happens on social media: users tagging posts to join a conversation are not indicating trade origin, and a brand that registers a hashtag does not thereby acquire control over the conversation.
This is where hashtag marks most often disappoint. The reason to register is usually to stop competitors from hijacking a campaign tag commercially — not to police ordinary users, which neither the law nor the platforms will support.
Conclusion
Hashtags are a simple and effective way to promote a business, product, service or event, and to stimulate interest in a campaign. It is from the trademark perspective that stricter scrutiny becomes necessary — both in what can be registered and in what a registration is worth.
Use hashtags, by all means. Use them with caution.
The takeaways
- The hash symbol adds no distinctiveness — the words carry the mark.
- Registrable only if it identifies source — the USPTO position, and the logic in India.
- Acquired distinctiveness through use is the practical route.
- Ordinary social media use isn’t infringement — the value is against commercial hijacking.
Frequently asked questions
Can a hashtag be registered as a trademark? Yes, but only where it functions as an identifier of the source of goods or services. The hash symbol itself adds nothing to distinctiveness.
Does adding a hash symbol make a descriptive phrase registrable? No — the assessment falls on the words, so a descriptive phrase remains unregistrable with or without the hash.
Is using someone’s registered hashtag infringement? Not where it is used merely to promote a social media message. It may be where the use suggests a connection or association with the trademark owner.
Is a hashtag mark worth registering? Usually only where the hashtag is campaign-defining and durable, and where the concern is commercial hijacking rather than ordinary user posts.
Useful official resources
- The Trade Marks Act, 1999
- USPTO