Hashtags have proven to be very valuable tools for businesses, with Facebook, Twitter and Instagram posts that include hashtags returning twice the engagement rate of those without one. While hashtags are too short to be afforded copyright protection (they hardly constitute ‘literary works’, now, do they?) and don’t qualify for patent protection because they are not an invention, it is possible to register a hashtag as a trade mark for your business.
#MakeItYourOwn: Hashtags As Intellectual Property (IP)
Trade marks help with brand recognition and differentiating your business from your competitors.
To qualify for trade mark protection, a hashtag must be something most consumers consider to be synonymous with your business (a brand identifier) and not merely a social media tool. In other words, if most people in the general public associate a hashtag with your product or service, it likely qualifies for trade mark registration. Think #sayitwithpepsi, which was registered as a trade mark by PEPSICO last year, or Twisties’ #lifesprettystraight hashtag.
In most cases, the “#” symbol itself is not considered the registerable part of the trade mark, rather, what follows the hashtag (for example, the unique word or phrase) that is checked against the requirements for trade mark protection.
What Is A Trade Mark And How Do I Get One?
Put simply, a trade mark is a unique descriptor – a logo, word, phrase, sound, smell, shape, picture, movement, aspect of packaging, letter, number, or a combination of these – that helps consumers distinguish between your goods and services and those of other businesses.
Unlike copyright protection, a trade mark does not automatically protect your intellectual property. Trade marks need to be registered with the relevant government authority, IP Australia.
Successfully registering your hashtag as a trade mark gives you exclusive rights to that trade mark for 10 years. If another business infringes those rights by using your hashtag without your permission, you can sue them for damages.
Trade mark protection is, however, subject to some qualifications. You must continue to use your trade mark (if you cease using it for three years you risk having it taken from the register), and it must continue to be regarded as a trade mark. This means that if your hashtag becomes a common name to describe goods or services, it is possible for someone else to seek to have your trade mark cancelled through the courts.
What Value Can A Hashtag Provide Your Business?
As a powerful content indexing tool, hashtags are incredibly valuable particularly given their potential to go viral.
Hashtags are recognised by brands as a low-cost marketing technique that, when used correctly, can be a fast, highly-effective and lucrative way to #jointheconversation and drastically increase audience engagement and sales. When used in conjunction with social media influencer marketing, the potential for growth is enormous.
Some of the most popular campaigns in recent memory have even gained traction with mainstream media outlets, leading to even more market exposure (think about the #MyCalvins campaign).
Increasingly businesses are seeking to not only stake their claim on their plot of digital real estate but also to protect themselves against other businesses who seek to cash in on their popularity. For example, where a competing enterprise piggybacks on the success of your social media stream by using a hashtag you created to promote their marketing agenda.
As the digital landscape becomes more and more crowded, businesses are looking to add value to their social media marketing strategy in more novel and distinctive ways. It seems that trade marking hashtags is a growing trend that is likely to gain much more momentum in the future as it becomes an integral part of brand strategy.
So, how will you differentiate your business from the rest of the digital crowd in 2017?
Further Information
For more guidance on the status of hashtags under trade mark provisions in Australia visit:
To make an application to register your hashtag for trade mark protection visit:
