Can You Trademark a Hashtag?

To register a hashtag as a trademark, it must qualify the two crucial conditions set under the Indian Trademark Act, 1999. The mark must be capable of being represented graphically and must be capable of distinguishing the products and services of the trademark owner from other identical/similar products and services of other parties.

What is a Hashtag?

Hashtags are a string of words or phrases that are usually preceded by a hash ( # ) symbol. It qualifies as a metadata tag and helps the user create, identify, follow and contribute to a particular conversation on social networking sites and across other internet applications. As the user-generated content around hashtags increase, it becomes viral. The use of hashtags has been gaining momentum for the past ten years, and today businesses are looking to cash-in on these ‘viral-trends’ to promote their products and services through content marketing strategies.  

Why should you register your hashtag?

Many businesses try to lay claim on certain tags to enjoy exclusivity and to increase their brand value. For instance, if your brand has coined a unique phrase or word along with the hash (#) symbol, and if the tag gets popularly associated with the brand (or the owner), it’s potentially an Intellectual Property that can be protected. Since Hashtags are too small to qualify for protection under the Indian Copyright Laws, the best way to secure rights is through a trademark registration.

Trademark Laws and Hashtags

To register a hashtag under the Indian Trademark Law, it must qualify the two crucial conditions set under the Indian Trademark Act, 1999, defined by Section 2(zb).

1. The mark should be capable of being graphically represented;
2. The mark should allow the goods and / or services of one person to be clearly distinguishable from those of another person.

While a hashtag can instantly meet the first condition, the second condition is the ultimate litmus test. It has to unquestionably act as a ‘source identifier’ of a person’s (either the brand or owner) goods or services. Only then would it qualify for trademark registration.

Under the Trademarks Act, 1999, a mark can be rejected when it doesn’t have any ‘distinctive character’ (meaning, unable to distinguish the goods and / or services of one person to that of the other). While the hashtag to be trademarked can either be invented word(s), or certain popular word(s) associated with the brand or owner, it has to pass the ‘test of distinctiveness’ under the Trademark Act. For instance, if you want to trademark #9, it’s sure to be rejected, because it’s not a distinctive mark.

Note that #tags that are merely going to be used on social media or as a part of an advertising campaign cannot be trademarked because they don’t fulfil the role of a trademark. Essentially, the trademarked hashtag must be used like any other trademark; it should be able to help identification of the source of the goods or services.