A hashtag can be registered as a trade mark, and many have been. What the hash symbol does not do is make a sign registrable that would otherwise be refused: the mark is assessed on the word or phrase that follows it, and the symbol itself adds no distinctive character.

Registration in the Netherlands runs through the Benelux Office for Intellectual Property, or through the EU Intellectual Property Office for a trade mark covering the whole European Union. The examination is the same as for any other sign.

When is a hashtag registrable?

The sign must be capable of distinguishing your goods or services from those of others. A hashtag consisting of a descriptive term will be refused for the goods it describes, exactly as the bare word would be: a hashtag that simply names the product, its quality or its purpose does not become distinctive by being preceded by a hash.

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

Use as a trade mark, not just as a label

Registration is one question; infringement is another. 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. The critical point with hashtags is that the use complained of must be use as a trade mark – use that the public understands as identifying commercial origin.

Consumers use hashtags overwhelmingly as topical labels: to categorise a post, to join a conversation, to describe what a photograph shows. That kind of use is not use as a badge of origin, and a rights holder who tries to stop it is likely to fail and to attract a good deal of unwelcome attention while doing so. Where a competitor uses your hashtag in advertising to promote its own goods, the position is quite different.

Practical consequences for brand owners

Three points recur 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 is at risk of being unregistrable and, if already registered, of being challenged. Third, a registered mark must be genuinely used in relation to the goods and services it covers, and use only as a campaign hashtag may not amount to genuine use of the mark 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, which are enforced separately from trade mark law.

What to do before you launch a hashtag

Search the Benelux and EU registers for identical and similar marks in the relevant classes, check how the term is already being used on the platforms in question, and decide whether the campaign is worth a registration. Where it is, file before the campaign starts: a mark filed after a term has become widely used by others is considerably harder to defend.

Advice

We advise on trade mark availability and registration in the Benelux and the European Union, on campaign terms, and on enforcement against genuinely infringing use. Please contact Law & More; our intellectual property lawyers are happy to help.