Hashtag as a trade mark: when can you register and enforce it?

A hashtag can be registered as a trade mark, and many have been. The hash symbol itself adds nothing: registration is assessed on the word or phrase that follows it, exactly as if the hash were not there.

In the Benelux, applications go through the Benelux Office for Intellectual Property (BOIP); for protection across the whole European Union, they go through the EU Intellectual Property Office (EUIPO). Both offices examine a hashtag mark the same way they examine any other sign, and a registration lasts ten years, renewable for further ten-year periods.

When is a hashtag registrable?

The sign must be capable of distinguishing your goods or services from those of a competitor. Under Article 7(1)(b) and (c) of the EU Trade Mark Regulation (2017/1001), and the matching rules of the Benelux Convention on Intellectual Property (BCIP), a sign without distinctive character or consisting only of a description is refused. A hashtag built from a descriptive term is refused for the goods it describes, just as the bare word would be: naming the product, its quality or its purpose does not become distinctive by adding a hash sign in front of it.

An invented word, a brand name, or a slogan that the public reads as a badge of origin can be registered. In practice, most successful hashtag registrations protect a mark the applicant already owned, filed again in hashtag form to cover use in social media campaigns.

Does using a hashtag count as trade mark use?

Registration is one question; infringement is another. Under Article 9 of the EU Trade Mark Regulation, a registered mark can be enforced against a third party who uses an identical or similar sign for identical or similar goods where that use is liable to cause confusion. With hashtags, the key point is that the use complained of must be use as a trade mark: use that the public understands as identifying commercial origin, not just a label.

Consumers mostly use hashtags to categorise a post, join a conversation, or describe what a photograph shows. That is not use as a badge of origin, and a rights holder who tries to stop it usually fails and draws unwelcome attention in the process. Where a competitor uses your hashtag in its own advertising to promote its own goods, the position is different and enforcement becomes realistic.

What should brand owners watch for?

Three points come up repeatedly in practice. First, a hashtag campaign built on a term you have not registered is a term you cannot control; check availability before launching, not after. Second, a hashtag that is, or becomes, the ordinary description of a product category risks being unregistrable and, if already registered, being challenged. Third, a registered mark must be genuinely used for the goods and services it covers within five years of registration (Article 18 of the EU Trade Mark Regulation), and use only as a campaign hashtag may not amount to genuine use for those goods.

For influencer and affiliate campaigns there is a further layer: a branded hashtag used in paid content triggers the rules on identifying advertising. In the Netherlands these follow from the Advertising Code for Social Media & Influencer Marketing and, for larger influencers, the rules of the Dutch Media Authority (Commissariaat voor de Media), enforced separately from trade mark law.

What should you check as a brand owner?

File before the campaign starts: a mark filed after a term is already widely used by others is considerably harder to defend.

• Search the BOIP and EUIPO registers for identical and similar marks in the relevant classes.
• Check how the term is already used on the platforms you plan to use.
• Make sure the term is not a description of the goods or services you sell.
• Choose the classes that match the goods and services you actually offer, and keep evidence of use.
• Agree in your influencer contracts how the hashtag may be used and how advertising is labelled.

What should you check as a user of someone else’s hashtag?

The risk sits in commercial use: using a registered hashtag to promote your own goods or services.

• Is the hashtag registered for goods or services that are identical or similar to yours?
• Do you use it in your own advertising, or only to describe or join a conversation?
• Could the public think your post comes from, or is linked to, the trade mark owner?
• If you received a cease-and-desist letter, is the registration still valid and genuinely used?

What can we do for you with hashtags and trade marks?

Through our IT lawyers we advise on trade marks in online and social media campaigns.

• We run an availability search in the Benelux and EU registers before you launch.
• We file the trade mark application with BOIP or EUIPO in the right classes.
• We review influencer and affiliate contracts for hashtag use and advertising rules.
• We send or answer a cease-and-desist letter about the use of a hashtag.
• We assess whether a registration can be challenged for lack of distinctiveness or non-use.

Summary

• A hashtag is examined for registrability on the word or phrase behind it; the hash symbol adds no distinctiveness.
• Register through BOIP for the Benelux or EUIPO for the whole EU.
• Ordinary, everyday hashtag use by consumers is not trade mark use, so it is hard to stop.
• Using a competitor’s hashtag in your own advertising is a different matter and can amount to infringement.
• Check availability and file before you launch a hashtag campaign, not after.

Frequently asked questions