With emergence of Social Media as a new platform for marketing of one’s goods and services, it has evolved the way business is done. The Brand owners put into use the social media platforms for marketing, customer service and lead generation as they have much of their profit and potential profit tied into their social media presence. With this, hashtags have become an important part of company branding online.
As per Meriam Webster Dictionary, a hashtag is referred to as “a word or phrase preceded by the symbol # that classifies or categorizes the accompanying text”. The registration of hashtags is a relatively new phenomenon. In India, hashtags are now in an evolutionary stage where they have become more important to a company's brand identity and intellectual property. When the trend of taglines for brands caught up, companies also started using unique hashtags that identified their brand value on social media platforms. As a result, registering trademarks for hashtags also emerged as an idea amongst the entrepreneurs.
Some hashtags are common and can be used by everyone, individuals or businesses. It could be #bestfriendsforever, #fridayfun, etc. But there are certain phrases that are unique to a certain brand, like, #ONLYIndia, #GucciAbsoluteBeginners.
According to a recent study by Clarivate Analytics, in 2010, merely seven companies submitted applications for trademark-specific hashtags. However, that number spiked as Twitter, Instagram and others became much more popular in our culture. By 2016, some 2,200 applications to register trade-mark specific hashtags were filed globally.
A trademark is a sign or symbol that is capable of distinguishing goods and services of one person from another. The trademark thus, should let its consumers identify the source of goods and services. Thus, a hashtag, as a trademark, in order to be registrable shall fulfil the following criteria:
a. Capable of being represented graphically; and
b. Capable of distinguishing goods and services of one person from another person.
The United States Patent and Trademark Office (USPTO) rejected several applications on the grounds that it was merely descriptive of the applicant’s services. Later, the USPTO, unlike India, discussed the issue of registrability of hashtags as trademarks at length. The USPTO stated that, “A mark comprising of or including the hash symbol (#) or the term ‘hashtag’ is registerable as a trademark of service only if it functions as an identifier of the source of the applicant’s goods or services.”
Some of the hashtag trademarks that were successfully registered in the United States include: #smilewithacoke and #cokecanpics (The Coca-Cola Company), #McDstories (McDonalds), and #makeitcount (Nike).
Even though under the law, there is no express prohibition of registering hashtags as trademarks, there is no express directive with respect to the same in India. No statistics regarding the filing of hashtag applications for registration as well. Therefore, it can be said that the hashtags are yet to gain momentum under the trademark segment.
The strategy of making a brand ‘viral’ is helping products and businesses propel to new heights in a short span of time. Even though trends in social media and marketing constantly change but the concept of hashtags is going to be vital for a long time. The popularity of the hashtag concept has seeped deep into our lives so much that one will find it even on offline messages now, just to achieve the objective of calling a point to a person’s attention.
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