Trademarking Hashtags : All you need to know

India, is fast becoming a fertile bed for new brands in multiple industries who have taken social media by storm. While multiple brand marketing tactics exist the easiest means for new brands are hashtags that get you multiple footfalls and cross geographical visibility barriers. So, can you own your own hashtag? Is it even a good idea to own a hashtag that jumpstarts your market campaign? Let discuss..

What is a Hashtag?

Hashtag is a digital tag prefaced by the sign hash # (also known as octothorp). A tool that consists of metadata used with digital content such as microblogging, digital photos, a form of user-generated data units that aids in categorization of content and conversations, cross-referencing ; as well as a help in brand recall. Moreover, they are easier to create, identify and follow across other internet platforms.

..”brands can trademark their campaign or advertising hashtags.”

#Trademark Worthy Hashtag:

The trend of trademarking a hashtag is very recent and began in 2010. Today, brands can trademark their campaign or advertising hashtags. The following are qualifying criterions to trademark your hashtag and protect your brand’s campaign identity.

  • Identification: Hashtag should be able to indicate the brand source for the product or services the hashtag is being used for. It should also be easily identifiable by the consumers or customers.
  • Graphic Representation: A trademarked hashtag should be graphically representable, such that if it is used in in graphics or advertisements it should have a distinct graphic quality.
  • Uniqueness: The hashtag should be easy to understand and clearly differentiate between brand proprietors’ product/services offerings as well as from their competitors in similar category.

#Legal Roadmap:

Hashtags can be trademarked in many countries such as US, UK, Australia, Singapore as well as in India . However, in India a hashtag trademark will be subjected to the Trade Marks Act, 1999, the same rules that apply to any other trademark. The pre requisites under the act require a hashtag mark to:

  • Be represented graphically; and
  • Should distinguish the goods/services of one brand from another.

“…while business duration and longevity of campaign matters, so does unfair competition laws and social media integrity…”

These pre-requisites are like Singapore legal provisions that requires the principle of graphic distinctiveness. Whereas, in UK , a hashtag can be registered if it is distinctive as well has the capacity to individualize the brand offerings with clarity and not being in any way similar to a hashtag of similar competitive category. A few examples of existing hashtags trademarks are , #McDstories (McDonalds International) , #freecheesefriday (WYKE Cheese- UK),  #BDOUNIBANK (BDO Unibank in Singapore).

Why should you trademark a hashtag?

While creators and entrepreneurs might wonder where does hashtag protection stand in terms of brands identity and campaign planning? Or where exactly does the fine line between hashtag trademark versus trademark infringement lie?

The answer resides in the fact that that while business duration and longevity of campaign matters, so does unfair competition laws and social media integrity. It is vital for brand proprietors to guard their promotional ideas and go-to market plans from the hashtag hijackers who seek to profit economically off pre-existing trademarked hashtags with minor readjustments. Thus, not only rendering the digital campaign as generic and exposing it to unnaturally large competition but also enabling limited digital market returns. These are the potentially disastrous effects because the mind work that goes behind campaign ideation and investments does not equate in digital revenues.

Moreover, unregistered hashtag marks create a likelihood of lack of brand association, confusion, and lack of desired communication ; which is the whole point of using a unique hashtag.

Words of #Caution:

While the legal implications with the registration and eventual valuation of hashtags are a matter only a legal professional can guide you upon . Some words of caution are vital such as;

  • New brand should opt IP protection for brand elements such as popular slogans, catchphrases that can outlast a campaign.
  • Monitor your competition and trending hashtags for hashtag hijacking and unfair digital practices.
  • Think about the purpose of hashtag mark so that it does not dilute the brand value and maintain the distinctiveness that will scale up the future campaign visibility for the company.
  • Do not over hashtag. Limited unique hashtag marks are a good business strategy to step up your social media game as well as monetize your future campaigns online.

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