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Should I Trade Mark a Hashtag?

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The hashtag (#) is used prolifically for communication on social media. Twitter popularised the hashtag (a word or phrase that is proceeded by the # sign) in 2009 to group discussion on certain topics and ideas.

Users can follow conversation and ideas through viral or trending hashtags such as #LegalVision, #FIFA, #JESUISCHARLIE, #POTUS, #sorrynotsorry and #Taylorswift. The hashtag is now a permanent fixture in pop culture and was added to the Oxford dictionary in 2010. Hashtags can be integral to brand recognition, so how can your business protect and register yours as a trade mark? We compare Australia and the United States’ positions on registering your hashtag, and whether you indeed should.

Australia’s Position

IP Australia recently updated the Australian Trade Marks Office Manual of Practice and Procedure to include a definition for the hashtag. The key takeaway from registering a hashtag as a trademark is the string of words behind the # symbol. The # symbol itself is descriptive of its function (to a group conversation) and is likely not to be approved as an Australian mark. The word or phrase that proceeds the # must be a way to identify your product or service to distinguish your business from other traders.

The US Position

In 2013, the United States Patent and Trade Mark Office (USPTO) amended the definition section of the Trademark Manual of Examination Procedure to include the hashtag. The rules that apply to hashtags in the US are no different to traditional trade marks. A hashtag trade mark must act as a defining badge for a brand in the marketplace for the brand’s goods or services. As in Australia, the word string behind the “#” is most likely to be the registrable subject matter.

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Who Can Benefit From Registering a Hashtag as a Trade Mark?

From large corporations to cult small businesses, if a hashtag is relevant to your brand you may reap the benefits of trademarking. Consider Coca-Cola who registered the “#smilewithacoke” and “cokecanpics” hashtags as trade marks. Both are distinctive and engage users in participating in a social media conversation with the brand. These hashtags remain relevant and important for coke promotions.  

Non-Traditional Use

If you decide to trade mark your hashtag, you will likely want users and third parties to engage with your trade mark on Twitter, Instagram and Facebook. This use is unlike the traditional trade mark where the trade mark owner wants to prevent others from using the mark.

Should You Trade Mark a Hashtag?

Does your brand rely on Twitter, Instagram or Facebook to generate clients? Or does your business have a unique #hashtag used to identify your brand or slogan? If a particular hashtag is relevant to your business, then you should think about protecting it with a trade mark. For example, if your coffee shop is called Bean Brothers and you give patrons free coffee who use the hashtag, #beanbrotherstuesday, then this may be a great option for you to ensure only your business can use this hashtag to reach clients.

Remember, however, you can’t register generic and commonly used words or phrases that are not distinctive such as #coffee.

Does a third party own your unique #hashtag? You will need to consider the origin of a hashtag before trademarking. It is important to know the source of a hashtag before endeavouring to protect it. Make sure it originated from your brand and or marketing team.

Does the hashtag have long-term benefits for your business? The downside of protecting a hashtag is that the popularity of certain hashtags is fleeting. A hashtag no longer trending is unlikely to remain valuable to your business, and you may be better off focusing on marketing than trade mark registration.

Key Takeaways

If you don’t think it is viable to register your hashtag as it is temporary or not distinctive enough to your brand, you might like to think about alternative protection. Do you have a traditional trade mark for your brand’s goods or services? Do you instruct visitors to your site how they can engage with your social media through website terms of use.

If you would like to trademark your #hashtag, get in touch with our intellectual property lawyers on 1300 544 755, or tag us on Twitter @legalvision_aus. 

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