#hashtagthat – Should you be registering hashtag trade marks

Businesses are increasingly asking whether trademarking a hashtag is a good way for them to spread the reach of their advertising campaigns and raise awareness for their goods or services.

Hashtag trade marks are either a #word or #saying and in theory as long as the hashtag trade mark meets the basic trade mark requirements, there is no barrier to registration. This means that if your hashtag mark is distinctive and capable of identifying you as the source of the mark you should be able to secure registration. Examples from industries as diverse as frozen foods and clothes are #toocoolforplastic registered by Iceland and #allgirls registered by Boohoo. But with all things intellectual property we then have to ask the question as to whether it is a sensible investment for your business.

Take our own business Briffa and our social media posts. We use hashtags liberally to draw attention both to ourselves and the topics we write about. #IntellectualProperty #IP #copyright #trademark #designs #BriffaWay and similar are liberally sprinkled. But would we want or need to own these even if they passed the distinctiveness test at the registry.

The basic problem with hashtag trade marks seems to be that while you can secure rights, the purpose is not necessarily as an indication of origin but as way of disseminating information. A successful hashtag is often intended to be used freely and by many people to build awareness and therein lies the problem. A trade mark which is not policed and enforced will lose its trade mark magic.

If you allow a trade mark to become ‘generic’ through non-enforcement it can be vulnerable to revocation and essentially therefore worthless. This in itself should be reason enough to take a very cautious approach when deciding whether to invest in a hashtag mark.

Here’s our 3-step questionnaire to help you decide whether a hashtag mark will add value to your intellectual property portfolio and is a worthwhile investment for you:-

1. Does your business already have trade mark registrations? If not, what are you playing at, you need to focus on getting some basic filing done and rights secured.
2. Do you plan to use the hashtag mark in the long term?  A one-off advertising campaign is unlikely to make the investment worth it. A longer-term plan may do.
3. Does your chosen hashtag mark fulfil the basis of registration criteria, i.e. is it distinctive and an identifier of origin?

Briffa are experts in all aspects of intellectual property law and practice. We advise our clients on non-contentious matters, such as protecting their IP at the outset and making money from their IP through licensing and other commercial arrangements. We also advise our clients on contentious matters, such as trade mark, passing off, copyright and design right disputes. Regardless of your business or industry, we can help you. If you would like to arrange a free consultation, please do so via our website, call 020 7096 2779 or email info@briffa.com.