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Can you trade mark a hashtag?

Posted on 06th August 2015 in Intellectual Property

Posted by

Jill Headford

Partner and Solicitor
Can you trade mark a hashtag?

The great benefit of social media as a marketing tool is its immediate and powerful market reach. The use of hashtags, words and phrases preceded by the ‘#’ symbol to identify and search for trending topics, has become a popular method of consumer engagement.

 

Can you trade mark a hashtag?

Because a hashtag can’t be owned, many businesses are trying to register their favourite hashtags as trade marks to stop others using them, which the IPO is open to.

However, the very point of hashtags is that because they can be used by anyone, they allow trends to be built around a brand. So preventing third parties from using them defeats the primary purpose of a hashtag.

If, as a way around this problem, the trade mark owner allows third parties to use its hashtag registered mark, it may become generic and therefore unenforceable as a trade mark. Once its popularity diminishes, a hashtag registered as trade mark becomes vulnerable to accusations of non-use which can lead to its revocation.

 

If someone else uses my hashtag does that infringe copyright?

The use by others of a hashtag which is a registered trade mark will very often not constitute trade mark infringement at all. Some key points are:

  • The main reason for someone to hashtag a brand or business name is to express an opinion or make some point about it. Such comment is unlikely to constitute trade mark infringement unless the hashtag were being used for the purpose of imitating a trade mark.
  • In any case, legal action by a brand owner in response to criticism via social media is best brought under defamation laws.
  • Many such situations call for a commercial rather than a legal response, for example directly engaging with the criticism by entering into online discussions with the posters of the comments.

So although registering a hashtag as a trade mark might seem like a good idea – it may not be worthwhile.

 

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