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Hashtags and trade marks

First popularised by Twitter, the humble hashtag’s status has elevated from an afterthought on a keyboard to pop culture icon.

But can you register a hashtag as a trade mark? 

Registering hashtags as trade marks

This is certainly doable, and IP Australia has provided some helpful guidance on its website. Key points to note:

1. Hashtags are a commonly used and recognised symbol. But it’s the words that follow the symbol that will determine whether your overall hashtag is capable of being registered as a trade mark.

2. The usual trade mark rules apply – your hashtag must:

  • be capable of distinguishing your goods and services from those of others
     
  • not be substantially identical or deceptively similar to another trade mark (with or without the hashtag symbol)
  • not be something that competitors would want to use (eg if you manufacture surf boards, you’d likely not be able to register #surfinglife as a trade mark).

Speak to a trade mark lawyer if you’re thinking about doing this.

Don’t infringe others’ rights

This is the other side of the trade mark coin.

When devising a hashtag, don’t tread on another brand’s toes by including their trade mark in your hashtag.

And before you start using a hashtag, consider whether it’s been used previously and in what context – you might not want to have your brand turn up in hashtag searches for cute cat videos.

Do your due diligence –internet searches can be informative!

The take out

Be creative with hashtags by all means, but be careful not to infringe others’ rights. Always check to see whether a hashtag has been used previously, and in what context.

And if your brand has acquired a reputation in a particular hashtag, consider registering it as a trade mark.

#endoflesson 

ABOUT THE AUTHOR

David Kelly is the founder of KHQ Approved, which offers fixed fee solutions across a range of areas (including marketing law and contract review).  Peace of mind from an experienced team for a reasonable price.

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