A trademark is a name, logo, slogan, tagline, colour or sound that identifies the source of a product or service. In other words, when people see it, they know it comes from you and is related to something you sell or do. We see the “tick” and we know to expect a Nike product.
However, could a hashtag be used as a trademark? For instance, if you want to share your product and services on Twitter and decide to accompany it with a #hashtag, could you proceed to trademark that hashtag. The answer depends on what you use as your hashtag and where it came from.
To trademark or not to trademark?
Hashtags by themselves are considered too short or ambiguous for copyright protection. For instance, if you just use a generic phrase on Twitter, such as #thisisgreat, it would not fall under the domain of a trademark, regardless of how many times you use it. A textile company once tried to register the hashtag #SEWFUN for instruction regarding sewing. However, the company only used the mark on social media, namely, on Twitter to organise users’ comments about sewing classes. They were refused registration of the hashtag because it failed to function as a trademark by itself. This raises a very important point:
Used to reference a company’s social media campaign or to index a social media message, the hashtag is not protectable.
But what about something that is already trademarked?
When a slogan that is already trademarked is used as a hashtag, then it can be cannot be used by others, regardless if it is on social media, print or as a hashtag. If Nike, for example, used their slogan “Just Do it” as the hashtag #justdoit, it would be trademark protected because the slogan identifies their brand and has already been trademarked before it was used elsewhere. This is what the United States Olympic Committee did. They successfully trademarked several slogans prior to the 2016 Rio Olympics, such as “going for gold”, which they did to prevent other companies and athletes using them during the games.
Therefore, your best bet for securing rights to a #hashtag is first through trademark protection of your brand’s or campaign’s slogan before putting it online. Once you’ve used a generic phrase, word or hashtag online that others also frequently use for other references, your chances of trademarking go downhill.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. (E&OE)
Reference: Companies and Intellectual Property Commission
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)