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.
When is a hashtag registrable?
The sign must be capable of distinguishing your goods or services from those of a competitor. 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. 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, 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, 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 you plan to use, and decide whether the campaign is worth a registration. Where it is, file before the campaign starts: a mark filed after a term has already become widely used by others is considerably harder to defend.
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.
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