Are Hashtags the New Trademarks? Are You Allowed to Use Them?

It wasn’t too long ago that hashtags didn’t even exist, but since the birth of Twitter they’ve grown to become so much more than a tool to identify messages on a particular topic. They’ve become stand-alone marketing tools, used in adverts and advertising campaigns to strengthen brand engagement and recognition.

This is reflected in new trademark research conducted by CompuMark, which found that the number of hashtag trademark applications globally in 2016 saw an increase of 64% compared to the previous year. Interestingly, since the first ever trademark application for a hashtag was filed in 2010, there have been well over 5,000 applications — 2,200 of those coming in 2016 alone.

The research also found that the US is far and away the global leader when it comes to the number hashtag trademark applications in 2016 — an impressive 608 in total — but its total percentage share for the year was actually down to 28% compared with 25% in 2015. Coming in second place was Brazil with a total of 226 registered trademarks, while India won the bronze medal with a respectable 141.

What these stats seem to tell us is that, even though organisations on a broad level are applying to trademark more hashtags than ever before, there are signs of a slowing down in growth within the US possibly due to the time and labour-intensive work that is required to successfully trademark these hashtags in an already ferociously competitive marketplace.

The results get even more interesting when you start looking at the hashtag trademarking efforts of individual companies. The Colombian broadcaster RCN Television S.A. applied for 50 different hashtag trademarks over the course of the year; all of them related to its Grita Gol football programming.

Of all the different trademark classes available, there were three that attracted the vast majority of them. 594 of these hashtags fell into Class 41 (education and entertainment services, shows, sporting events, training), closely followed by 587 in Class 35 (advertising and administration, business consultancy, marketing, online retail, recruitment) and 512 in Class 25 (clothing, footwear and headwear).

On the whole, these figures indicate that more brands across a broader spectrum of countries are realising the value of going through the proper trademarking procedures in all spheres, including social media, to ensure they are effectively protecting themselves from potential infringement and mitigating the associated risks.

Mark O’Halloran, Partner and trademark specialist at law firm Coffin Mew, said in response to this story:

“Hashtags have become something of a fad in trademark circles, and that’s no surprise given the advertising spend on social media these days. But I’ll make a prediction that when trademark laws are next updated, the ubiquitous # will cease to be relevant.

“The fad took off when brands realised that a catchy hashtag helped their adverts go viral. So, in addition to their own straplines, they began registering the tags with which they labelled their posts and videos. This meant that competitors could not get in on the act and hijack the media conversation using that same hashtag (in theory, anyway). All too often social media made its own mind up and hijacked the campaign itself for humorous or other reasons – #McDstories anyone?

“But, in the trademark world, fads quickly become generic and lose all value when it comes to registration. Once the public become used to seeing hashtags as registered trademarks, the difference between, say, ARAMA and #ARAMA ceases to be relevant. In other words, much as adding an S or slightly mis-spelling a word doesn’t count when distinguishing trademarks, the # itself will soon cease to be a distinctive element for registerability purposes.

“More to the point, a good hashtag is both catchy and descriptive; and descriptiveness is a problem when registering a trademark. But the biggest problem of all is this: if brands want to engage their customers on social media, trying to control the conversation rarely goes well. People see through it and are unlikely to be dissuaded from mockery just by that little ® symbol – #fail®.”

(Source: CompuMark + Coffin Mew)