Business Laws

Can you trademark a hashtag?

Vaishnavi Joshi | Updated on: Jul 03, 2022
Make a ‘hash’ of it: Wielding social media as a brand-building

Make a ‘hash’ of it: Wielding social media as a brand-building channel | Photo Credit: MicroStockHub

Yes, many countries do it, as businesses capitalise on its marketing might

Even if you spend minimal time on social media, you will agree with these three observations: social media has become an indispensable marketing channel; the platforms are constantly developing online marketing opportunities; and hashtag has emerged as one of the most innovative marketing tools.

Hashtags are words or phrases preceded by the hash sign (#) that are used on social media platforms to help identify content topic-wise. The main purpose is to increase views for the content. Another purpose is to create and contribute content to a common topic-specific platform that users can search for using the hashtag.

The significance of hashtags became evident during the global activism campaigns of the #MeToo and #BlackLivesMatter movements. When the potential of hashtags became obvious, businesses did not waste time in capitalising on this opportunity.

Hashtags and businesses

Using hashtags, businesses can access their customer base — both existing and potential ones — for free. For instance, Coca-Cola invited its followers to share a picture of the person they would like to share their drink with, using the hashtag #shareacoke. The soft drink maker ensured that its content reached not only those consuming Coke but also the ones they would like to share it with.

Indeed, a smart way of using hashtags is to increase the searchability and accessibility of the business. Consequently, hashtags have emerged as a powerful branding tool, with infinite possibilities for creativity and innovation.

Registration of hashtags

Even though registering one’s hashtag as a trademark does not prevent others from using it, a registered hashtag trademark is significantly important in a highly competitive market.

A trademark registration for a hashtag gives a business an upper hand over competitors.

Some factors that a business should consider while registering a hashtag are: Does the hashtag contain elements of its brand? How long does it plan to use the hashtag? How much can it invest to promote the hashtag? And, what are the chances that the hashtag may be used by a competitor?

How to register hashtags

The World Intellectual Property Organisation (WIPO) recorded only seven applications globally for registering hashtag trademarks in 2010. In 2016, this number increased to 2,200 — a 64 per cent growth. Since trademarks are territorial rights governed by country-specific laws, let’s look at a few country-specific criteria for trademarking hashtags:

India: In order to qualify as a trademark under the Indian Trademark Act, 1999, a hashtag should be capable of (a) being represented graphically, and (b) distinguishing the goods and/or services of one person from that of another.

The first condition is fulfilled by most hashtags as they are essentially words and/or numbers capable of being represented graphically.

However, to satisfy the second condition, the applicant should ensure that the hashtag is distinctive in nature or has become distinctive over time.

This implies that a hashtag containing a generic word may not be considered distinctive.

The US: The United States Patent and Trademark Office (USPTO) has been quite open to the idea of registering a hashtag as a trademark. The USPTO treats hashtags like a domain name and prefers being case-sensitive.

For a hashtag to be registered as a US trademark, it must serve as a source identifier. Simply put, the hashtag should be indicative of the source and not merely a common or generic word or phrase.

Singapore: The general principles governing all other trademarks in Singapore are equally applicable to the registration of hashtags as trademarks. Further, the hashtag to be registered must be distinctive.

Some of the existing hashtag marks in Singapore trademarks are #BDOUNIBANK in Class 36 for banking-related services, #SAYITWITHPEPSI in Class 32 by Pepsico Inc, and #PIZZAMENOW in Class 43 by Pizza Hut International.

Therefore, hashtags are a simple yet innovative option to promote one’s business and build brands. Although trademarking a hashtag does not prevent others from using it, nevertheless it does provide legal protection in case a competitor tries to derive undue benefits from your creative efforts.

It is highly advisable that a business not only uses hashtags but also registers them.

The writer is a lawyer with Photon Legal, a law firm

Published on July 03, 2022
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