In this current generation, our life revolves around social media. Social Media platforms are emerging as an indispensable platform for marketing, customer service, promoting skills, and various kinds of arts. Brand Owners achieve an ample amount of profit through their social media marketing, thus here Hashtags become an important part of the online branding of companies.
Hashtags are presently in an evolutionary stage where they have become essential for a company’s brand identity and intellectual property. A hashtag is referred to a phrase or a single word that is preceded by a symbol of hash (#), also known as the pound sign.
There are some hashtags that are common and can be used for everyone, individuals or businesses. But, there are several phrases that are unique to a certain brand, for example, ones with the taglines of popular brands, therefore companies started to register their unique hashtags which identified their brand value.
Hashtags are considered to be simple but powerful means of stimulating interest or reactions for a particular product, brand, or service. Furthermore, it generates sales and boosts brand recognition, it does not automatically turn a brand name or advertising slogan into a registerable trademark. If you have a hashtag that is very essential for your company’s online presence and has started catching on customers, then you might wonder if you can trademark that Hashtag.
CAN A HASHTAG BE PROTECTED AS INTELLECTUAL PROPERTY?
Two conditions to be taken into consideration under Trademark Law while qualifying a Hashtag for Trademark Filling:
- It must be representable graphically
- It must distinguish the goods and services of one person from another person.
We may observe that the first condition is fulfilled instantly as the hashtag is a combination of words and numerals which are graphically represented. The problem occurs with the second condition, which is regarded to be an ultimate test for a hashtag to be qualified as a trademark.
In general, hashtags have a limited shelf life because topics trend for a brief period before they die their own death in a short span of time, and some other topic and hashtag takes over. Under the Trademark Law, it is not easy to achieve the second condition for protecting the hashtag as an Intellectual Property. The trademarks are a “source identifier” and the hashtags which can fulfill this criterion can qualify for registration under the Act.
- Under Section 9 of the Indian Trademark Act, 1999, the absolute grounds of refusals are given and sub-section (1) of Section 9 states that:
“The trademarks -which are devoid of any distinctive character, that is to say, not capable of distinguishing goods or services of one person from those of another – shall not be registered”
On analysis of this Section, it can be said that hashtags that are distinctive in nature can be registered as a trademark under the Indian Trademarks Act, 1999. So, hashtags which may fulfill the two conditions that hashtags are distinctive in nature or have become distinctive within a period of time will be qualified to be protected under the Law.
The distinctiveness mentioned under the Act may be classified in two:
- Inherent; and
- Acquired
A hashtag can easily fall under any of above mentioned two categories, it may either be inherently distinctive in nature due to it being an invented word or it may be something that trends for a longer period of time such that the people start to identify the particular source through hashtag only. Further, it shall also be kept in mind that applying a hashtag to a common word or generic word would not make it a trademark as putting a hashtag will not make it distinctive. The trademark needs to pass the test of the distinctiveness of a trademark provided under the Act.
So here’s a question for you… Is your Hashtag distinctive enough?
