March 31, 2016
To #Hashtag or Not to #Hashtag
To #Hashtag or Not to #Hashtag

The humble hashtag now has a lot more to offer than ever before. It is the new way of communication –  helping users identify a particular topic on social media (all the same “hashtagged” posts can easily be searched and viewed together) or just as a way to promote a new or up and coming trend. If you had any doubt about how important the #hashtag is, Twitter even offers a support page with tips on how to use the hashtag correctly.    

The increased use of the hashtag, especially on social media, has meant brand owners want to join in on the fun too: think Dove's #SpeakBeautiful campaign or Red Bull's #PutACanOnIt promotion. In addition to this, increasingly brand owners are also registering popular hashtags as trade marks. In fact, it has been reported that almost 1400 applications to trade mark specific hashtags were filed globally during 2015 – what an increase from 2010, when just 7 companies applied to trade mark hashtag marks!

From a trade mark registrability point of view, the consensus seems to be that a hashtag trade mark’s registrability will be determined on the same principles of distinctiveness and non-descriptiveness as any other mark. Such a concept has been applied to domain name trade marks, where the “.com” or “” would routinely be disregarded and considered non-distinctive. When enforcing a hashtag trade mark, it is assumed that a similar concept will be followed, with the hashtag  element likely to be disregarded in the comparison of marks.

With this in mind, it is interesting to note the number of hashtag marks already registered on the EU Trade Marks Register and how these can be enforced, e.g. EUTM No. 1178871 #loveit for bags, clothing and retailing services, EUTM No. 1243999 #startbetter for cosmetics and beauty consultation services and EUTM No. 1253130 #together for sporting activity services. Would these marks have been registrable if they did not have a hashtag in front of the words? And how wide is the scope of protection offered to these trade mark proprietors?

We hope time will give us further guidance on these points. For now, brand owners who use hashtag marks in their marketing activities or to generate presence on social media should definitely consider trade mark protection for these #marks.

Online Brand Enforcement /  Fashion /  Food & Drink /  Trademarks /  Domains /  Advertising /  Sport /  Beauty

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