“The more often the social media community uses a hashtag, the more likely others are to see it and make a connection with your brand. This means you have less control over a trademark than you would traditionally, but the risk comes with a positive outcome.”
A hashtag is a useful way to promote your brand on social media platforms such as Twitter, Facebook, and Instagram. When the name of a brand, a tagline or catchphrase is hashtagged in a post, other users of the platform can find the hashtag easily by simply searching for that particular tag. It’s become an essential part of every brand’s social media marketing strategy. It can be used to attract new customers and engage with them.
Can you trademark a hashtag?
It makes sense that anything that has been formalized as part of a marketing plan should have trademark protection to protect the brand. And it is indeed possible to trademark a hashtag.
A hashtag trademark follows the same registration rules as traditional trademarks. The Australian legislation that defines this is Section 17 of the Trade Marks Act 1995. It states that “A trademark is a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person.” With this in mind, a hashtag can be registered as a trademark if it acts as a “badge of origin” for the products or services, is not a descriptive word, and there are no existing prior third party rights.
But could copyright law also cover a hashtag trademark? It’s unlikely, as hashtags are short (similar to advertising slogans which are catchy and concise). To fall under copyright law, it would need to be more substantial to be established as an original “literary” work.
How does a hashtag trademark differ from a traditional trademark?
Hashtag trademarks differ from traditional trademarks in that both the trademark owners and the social media followers can use the hashtag. The aim is for the potential customers to actively make use of a trademarked hashtag, and to share it with others. The more often the social media community uses a hashtag, the more likely others are to see it and make a connection with your brand. This means you have less control over a trademark than you would traditionally, but the risk comes with a positive outcome. With a traditional trademark, only the owner of the trademark has the right to use it, and the law is very clear on the matter.
IP Australia updated the Australian Trade Marks Office Manual of Practice and Procedure in 2016 to include a definition for a hashtag and offers some guidelines for businesses to follow. It also lists examples of what could be seen as ambiguous cases, which you can look at to see if they could also relate to the eligibility of your brand. If you’re unsure, ask yourself the following questions about the word behind the #. If you answer yes to the questions, your hashtag could be defined as a trademark.
- Does it identify your product or service?
- Is it a non-descriptive word?
- Does it differentiate your business from other businesses?
- Is it already registered (®) as a trademark in Australia by you? If it is, it’s not necessary to register a trademark of the hashtag version of it unless you actively use it to identify your services.
- Has it become widely used so that it now works as a ‘trade origin’ for your goods or services?
- Is it more than a social media marketing tool and is now recognized as a brand identifier?
Have hashtag trademarks been tested in Australian courts?
No, they haven’t, but one way of addressing this is to look at what would happen in a ruling about a domain name trademark. A similar finding is likely to be found in a hashtag case. Many brands and businesses trademark a domain name, but they can only do this if the name of the website distinguishes the goods or services for the trademark.
To challenge a hashtag with trademark infringement, you would need to show that a competitor had used an identical or very similar sign related to the same goods or services.
What does this mean for your brand?
When you’re working on a new marketing plan, it’s wise to consider if the hashtags you are planning on adopting could infringe on a competitor’s intellectual property rights. Of course, it’s also essential to weigh up the reasons for registering it for your brand. What brand damage could occur if a competitor used it?
We’re likely to see trademark law expanding and evolving to address the questions that social media marketing is creating, including that of hashtags. It may be advisable to be ahead of the game and think about registering hashtag trademarks for your business.
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Copyright: Julia Tim