Can you register a #trademark?

With the popularity of social media increasing every day, it is the perfect platform for any business to build a brand.

Twitter in particular has found itself the perfect place for businesses to have instant interaction with the industry and its customers.

A key component of Twitter’s concept is the hashtag. It allows companies to easily track the conversations, to understand how popular their products or services are and to generally increase awareness online.

To combine this social media tool with the power that trade mark protection gives would have a huge impact on any businesses popularity, but is it even possible?

In the USA, a hashtag can be registered as a trade mark if the company is providing a product or service to the public associated with it and it can use it to brand that product or service on printed surfaces or online material. However it has limited power of other use as you can only prevent other organisations in the same industry using it. A case of trade mark infringement cannot be taken against any use on Twitter by any person.

In contrast, there is no current intellectual property protection for hashtags. Copyright does not recognise any singular words or acronyms, so trade marks is the only option for future development.

This would also not be easy. A company would have great difficulty enforcing a trademark on social media platforms because post removals are often impossible when the hashtag is popular or ‘trending’. This difficulty has been highlighted in a number of cases involving well-known brands such as Coca Cola who failed to gain control over hashtags that involved their registered trade mark, including #smilewithacoke and #cokecanpics.

However, this does not prevent any development in the future. There is increasing evidence that companies are using hashtags in a trademark sense. This could spark a legislation change which would reinvent the effect of social media on businesses.

Therefore, always be wary of any hashtags you use that could potentially interfere with another’s intellectual property rights. You never know what is round the #corner.

By Ellis Sweetenham