What do #hashtags mean for trade marks?

Hashtags are a popular feature on social media platforms including Twitter, Facebook and Instagram that work by categorising messages with the same hashtag in real time. This means users can search and view specific content by clicking on the hashtag and everything that includes that tag will be displayed.

Hashtags can include slogans, taglines, social movements, brands and trade marks. A few examples are the Twisties slogan #lifesprettystraight, the social movement around the Nigerian boarding school kidnapping #BringBackOurGirls and the Australian brands and trade marks #qantas, #bobjane and #arnotts.

Hashtags and your trade mark

Hashtags have become a recognised symbol and therefore they have a meaning to the general public. This means that in most cases it’s what follows the # symbol that will be considered as your registrable brand. If what follows the # symbol is not going to be acceptable as a trade mark the addition of the # symbol is not going to get it over the line. Consider whether the # symbol is an essential part of your trade mark or simply a social media tool before you apply for the symbol in your trade mark.

In most cases the # symbol would be considered non trade mark material, the same way most domain name trade marks are considered – such as .com or .com.au. It’s what comes before the .com or .com.au that is checked for its suitability as a trade mark.

If a hashtag itself has become trade mark material for a business, for example when a business and its customers have used that hashtag so much that consumers recognise the hashtag as a brand identifier, then it could be considered trade mark material.

Hashtags and similar trade marks

A trade mark is a sign including a word, logo or slogan that differentiates your products or services from those of another business. If you apply for a trade mark using the # symbol that is similar to a trade mark without the # symbol, it would still be considered similar. For example, a trade mark for BIG BITES registered by ‘applicant one’ would be considered too similar if the same or similar goods and services as a trade mark application for #bigbites by ‘applicant two’.

Hashtags and trade marks likely to be needed by other traders

If the # symbol is followed by words that other businesses would need to use it’s unlikely to be acceptable.  For example, a landscaping business wouldn’t be able to register #nativelandscaping because this describes the type of landscaping the business does

In most cases the hashtag is simply a social media tool and it’s what follows the # symbol that would set your business apart.

By Jodie, IP Australia