Can You Trade Mark Hashtags?

Can You Trade Mark Hashtags? We get asked this question a fair bit. 

We do quite a bit of work with business clients wanting to protect their brand. Trademarking your business name, logo and key products makes sense.

They are a no brainer in being a solid legally enforceable way to protect and enforce your intellectual property rights.

But what about a hashtag? the humble but increasingly used # is increasing used in more and more communications.

The initial widespread use of hashtags has been in social media. This is more on Twitter and Instagram as an indexing tool or keyword.

But it also is relevant if your business or brand is so inextricably linked to that particular hashtag.

In that way trade marking it is a natural extension to the normal intellectual property and branding processes.

It is even more relevant if your brand has the hashtag embedded within it as a matter of course.

Can You Trade Mark Hashtags?

CAN YOU TRADE MARK HASHTAGS?

IP Australia quite rightly puts it as follows.

“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. Is it simply a social media tool before you apply for the symbol in your trade mark?

So how inherent and significant the mark and hashtag are inextricably linked, as a name, as a brand, as a mark matters.

You won’t be allowed to hijack someone else’s trade mark.

And just adding a hashtag to it and trying to register that as a trade mark won’t help either.

IP Australia has already flagged the existing reasons for non-acceptance to a trade mark will carry through to any hashtag related marks.

This means anything that is similar to an existing mark will be problematic.

Also the need for the public to use it descriptively is also relevant as grounds for it not to be accepted.

The initial guidance from IP Australia seems a natural extension to existing general trade mark practice, but only time and our courts will tell.

Here is an article we wrote about registering a trade marks a while ago that you may find useful.

It may also help you understand the issues a bit more.

Call us now to discuss your trademark matter.

IP Australia have an interesting article on the topic here if you would like some further information.

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