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#Hashtag Trade Mark Applications

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hashtag-1120301__340Not that long ago, the hash symbol (#) was more commonly referred to as the “pound sign” or “number sign,” and its use in the early internet was primarily on chat services. That all changed 10 years ago when Chris Messina suggested to Twitter that it should start using hashtags to distinguish between groups and topics. Now, referring to the symbol as anything but a hashtag is guaranteed to get oneself labelled as #old.

Since its rebirth on Twitter, the hashtag (officially named the octothorpe) has grown to become a powerful marketing tool in advertising campaigns used to strengthen brand engagement. Hashtag marketing campaigns generate brand awareness by encouraging social media users to post with the campaign hashtag. For example, Audi’s #WantAnR8 or Coca-Cola’s #ShareaCoke. Hashtags function as “the ignition keys to a social media keyword search”.

As if in honour of the hashtag’s 10th anniversary, new trade mark research conducted by CompuMark has found that the number of hashtag trade mark applications filed globally in 2016 increased by 64% compared to the previous year. Since the first hashtag trade mark application was filed in 2010, there have been over 5,000 applications, 2,200 of which were filed in 2016.

Interestingly, three trade mark classes attracted the majority of applications. 594 hashtags were filed in Class 41 (education and entertainment services/sporting events), closely followed by 587 in Class 35 (advertising, marketing, online retail) and 512 in Class 25 (clothing, footwear and headwear).

Unlike traditional tag lines, which are intended to be used primarily by the mark owner, hashtags are typically intended to be disseminated by social media users. A catchy hashtag creates its own social media community around a brand and can spread far and wide across the digital landscape.

Naturally, brand owners want to prevent competitors trying to cash in by hijacking the content stream tied to their cleverly marketed hashtag campaign. The figures above highlight that brands are realising the value of their trade marks in all spheres, including social media, and are trying to ensure that they are protected from any potential infringement or associated risks.

To successfully register a hashtag slogan, the term must be registrable as a trade mark without the hashtag. Descriptive and generic terms are not registerable as trade marks. Therefore, the hashtag must not describe the goods or services being promoted.

Examples of descriptive hashtags that are not registerable:

#SKATER for skateboard equipment

#JEANS for clothing

#APPLE for fruit

Examples of distinctive hashtags that are registered:

#LIKEAGIRL for feminine hygiene products marketing

#FINISHIT for anti-smoking advertisements in all forms of media

Finishit

#GOHARD for clothing

GoHard

You will notice that the #FINISHIT and #GOHARD examples include a graphic element as part of the application. The graphic element forces owners to establish use of the hashtag in commerce, rather than just appearing in the Twitter news feed.

Essentially, the hashtag is no more—but also no less—capable of functioning as a trade mark than the non-hashtag form of the relevant tag line or phrase. Although it could be argued that this ignores some unique features of hashtag marks, the fact that hashtag marks also function as online search terms increases the need for it to have a close and obvious connection to a particular brand if it is to be recognised as a trade mark. It must be clear that the hashtag acts as an identifier of the source of goods/services and not merely a search term.

As competition for attention among social media users increases, trending hashtags will continue to be a prized commodity. However, given the ephemeral nature of some hashtags and the fleeting popularity of social media fads, it is worth considering the long-term viability of a particular hashtag before expending time and resources to protect it. It remains to be seen how trade mark infringement involving the use of hashtag marks on social media will be resolved.

Amelia Skelding 4 September 2017


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