Can You Trademark Hashtags?
A catchy hashtag can be a powerful advertising tool, which you may want to protect. Find out here if you can trademark hashtags.
Hashtags are now a common feature of social media. You can find them on social media websites such as Twitter, Instagram and Facebook at the bottom of posts and photos. If you are a business owner or have an organisation, you may want to trademark a catchy hashtag to promote your business or cause. Protecting a hashtag through trademark registration can prevent other competitors from hijacking your online campaign for their own benefit. Here, we will discuss what hashtags are and whether you can and should register a hashtag as a trademark.
What are hashtags?
If you’re late to the game, a hashtag is a ‘#’ symbol followed by a word or words. People use them on social media websites to label and collate similar content. You can “tag” any content you make, such as a photo or a written post, with hashtags that describe or relate to that post. This can include the location you are in (“#Sydney”, “#Maccas”), what you are doing (“#dancing”, “#drawing”) or your mood (“#peaceful”, “#mad”). If you click a hashtag, the page will bring up other content also tagged with the same hashtag. The aim of hashtags is to help users easily access similar content. They also allow content-creators to access audiences interested in the type of content they make.
Nowadays, hashtags have evolved to be more than mere descriptors. People have used them to spearhead incredibly successful online advocacy campaigns, trends or advertisements. These include the “#MeToo” movement, which focused on raising awareness about sexual harassment and assaults. This movement spread all around the world through Twitter, and led to high profile figures such as the Hollywood mogul Harvey Weinstein being exposed for sexual misconduct. Another example is the “#MyCalvins” campaign. Celebrities and social media influencers posted pictures of themselves wearing Calvin Klein underwear and tagged this hashtag. This resulted in 3.6 million new followers for Calvin Klein’s social media accounts.
Can you trademark hashtags?
In short, yes you can. But just like any other trademarks, it must conform to certain rules for trademark registration. It would be the word or words that follow the “#” symbol that would need to conform to these rules. The hashtag will be rejected by IP Australia if it:
- Contains prescribed or prohibited signs;
- Is not distinctive;
- Scandalous or contrary to law;
- Likely to deceive or cause confusion; or
- Identical or similar to registered trademarks.
Returning to the above examples, hashtags such as “#Sydney”, “#drawing” or “#mad” will be rejected because they are not distinctive. People use these words in everyday life and they do not uniquely describe your brand or business. However, IP Australia is likely to accept hashtags such as“#MyCalvins” and “#Maccas” as trademarks they reflect a distinctive brand name. As trademark applications take several months, make sure you understand these rules so that your applications are not rejected.
Why you should trademark hashtags
As you can see from above examples, hashtags can become highly powerful marketing tools. If you have a business or a brand you want to promote, hashtags can help you to reach the right audience, and more people. An effective hashtag campaign can lead to enormous attention, launching your business into the internet spotlight.
Trademarks can help you to protect hashtags that you use to promote your business. Once a hashtag is trademarked, you can prevent other businesses or people from hijacking your hashtag to promote their own business. This will ensure that the successes of a hashtag campaign fall rightly to you.
However, you should make sure that you are tactful about any hashtags you want to trademark. You don’t want to turn any of your customers or audience against you by trying to trademark certain hashtags. This is what happened when the cosmetics brand Hard Candy Cosmetics applied to register “#MeToo” as a trademark for its make-up and fragrances. The business received huge public backlash as people saw this as trying to make money off a social movement and disrespectful to the cause. Hard Candy ultimately withdrew the application. Ensure that you consider the public’s perspective before trademarking a hashtag, particularly when the hashtag relates to a social cause or movement.
Trademarking a hashtag can certainly be a great idea to promote your business. In an age where most people are on social media, an effective hashtag campaign can really launch your business into the spotlight. Registering a trademark for that hashtag can ensure that your competitors don’t use your hashtag, or a similar hashtag, to promote their own business. Make sure you understand the rules for registering a trademark and consider whether it will have positive reception before doing so.
Diana is a Legal Tech Intern at Lawpath, working as part of the Content Team. She is currently in her final year of a combined Bachelor of Arts and Bachelor of Laws degree at the University of New South Wales. She is interested in media law, intellectual property law and the intersection between technology and law.