Social Media Marketing: Can You Brand a Hashtag?

Relationship between Social Networks and Hashtag

The Hashtag word or phrase is preceded by a pound sign (#) widely used on websites and social media applications to identify messages on a specific topic. It is mainly used for social media marketing purposes. The initiator introduced the hashtag with the intention of maximizing the reach of the topic to people and it is also a common platform for a topic. It has the ability to capture the attention of a large audience, which is why it gives rise to a generation called #tag. Social media is becoming an indispensable online marketing channel for brand owners for over 10 years using #hashtag. Now the most powerful weapon in the world of social media is of course #hashtag. This article will help you know when and how you can go through the trademark registration process, even if it is a trademark like Hashtag.

Can a hashtag be trademarked under the Indian Trademark Act 1999?

Of course, you can mark a hashtag like any other word or phrase that is directly related to your product or service. There is a specific definition provided under section 2(m) of the Trademarks Act of India, 1999 and according to this “A Mark consisting of a device, mark, header, label, ticket, name, signature, word , letter, number, shape of the products, packaging or even a combination of colors thereof”. Considering the above definition, a Hashtag can qualify as a mark that is countable under a combination of words and numbers, but for registration as a Trademark, the definition provided under the Indian Trademark Act, 1999 section 2 (ZB)-

“Trademark means a mark that can be represented graphically and that distinguishes one person’s products or services from those of others, whether it includes the shape of the products or their packaging and the combination of colors.”

Based on the above definition, the first condition is instantly met because the hashtag is a combination of words and numbers that can be represented graphically. The question arises in the second condition, which is an ultimate test for a hashtag to qualify as a trademark. Although, it is not so easy to achieve the essentials or basically, the second condition. Hashtags have a very limited lifespan due to topics tending for a brief period before dying on their own in a short amount of time and some other topic and hashtag taking over.

The trademark is a source identifier and the Hashtag that can meet these criteria can qualify for registration under the Law.

What are the reasons for the Refusal?

As per section 9 of the Indian Trademarks Act, 1999, the actual reasons for refusals are given in subsection (1) of section 9. It states that:

“A Trademark that lacks distinctive character, that is, that is not capable of distinguishing the products or services of one person from those of another, shall not be registered.”

If we analyze this section, we can say that the Hashtag which can fully satisfy both conditions of the Indian Trademark Act, 1999 can only qualify to be protected under the Act. The distinctiveness that is mentioned in the Act can be categorized into two categories:

(1) inherent

(2) Acquired

Hashtag can easily fall into the above two categories as it can be a made up word and it can be something that tends to last for a longer period of time so that people can start to identify the particular source through #Hashtag alone. Also, one thing should also be kept in mind when applying for a trademark Hashtag, the word to be used with a Hashtag should not be a common or generic word; otherwise it will not make it distinctive. The Registered Trademark must pass the distinctiveness test of the Registered Trademark provided for in the Law.

conclusion

However, these digital tools become a very normal feature of the landscape. The sharing culture they often rely on can present some IP-related challenges. Other than that, Hashtags trademark registration is still not very popular in India but the social media hobby is reaching a massive level due to the availability of cheap data with the introduction of Reliance Jio in the market. Suddenly, the Internet is flooded beyond everyone’s imagination. This will surely lead to the emergence of Hashtags as trademarks in the near future as a hot topic in the IP market.