Can I trademark a hashtag in India?

Today, hashtags are a common tool used for marketing of brands. Simply put, A Hashtag is a word introduced by a hash sign (#) used on social media websites to identify a topic. Hence, one who initiates a hashtag has an intention to increase the reach on social media and networking areas As a result, there is a rise in the common query of “Can I trademark a hashtag”. As we know, trademark registration in India is an overall protection over the marks you want to use in the course of trade. Hence, if your hashtag is unique and distinctive, you can apply for a hashtag trademark. So, in this blog, let’s delve into understanding how to trademark a hashtag and how to avoid hashtag trademark infringement in India. 

Can I Trademark a Hashtag?

Trademark protection is available in national and international jurisdictions. However, to obtain trademark protection outside India, you will need to file separate International Trademark Application. For all the different states and jurisdictions, there are different rules. So, let’s see by the different laws on if you can hashtag a trademark.

The United States Patent and Trademark Office

• USPTO says that they have no problem with hashtag trademarks, and they are accepting applications going in hundreds. They apply similar rules as to what is used for brands that have .com or a domain name.
• A hashtag trademark can only be recognized if the word added to ‘#’ is unique and distinctive. They have identified a hashtag as a trademark only if the term would function as an identifier of the applicant’s goods or services.
• Hashtags were typically made for searching for topics within the social media domain. The USPTO does not take a solid position whether hashtags are capable of protection or not. They have accepted many hashtag marks for registration but also rejected many applications. They consider it on a case-by-case basis.

Also Read: What can be registered as a Trademark?

Can we register a Hashtag as a trademark under the Indian Trademark Act, 1999?

The definition of a mark, which is provided under Section 2 (m), states that “Mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or any combination thereof.”

In that condition, a hashtag can qualify as a mark under a combination of words and numerals, but to qualify as a trademark it has to be at par with the definition of the Act. If it does qualify, you can see how to register a trademark in India here. 

Should I get a hashtag Trademark?

The two conditions mentioned under the Indian Trade Marks Act for a mark to be qualified as trademark are as follows:

1. Capable of graphical representation;
2. Can distinguish goods and services of one person from another person.

We can understand that the first condition is easy to fulfuill instantly with a hashtag. The main problem arises with the second condition, and it is the ultimate test for a hashtag to qualify as a trademark. If your trademark is not distinctive enough, you may face objections on the grounds for refusal of trademark registration. 

Under the Trademark Law, it isn’t easy to achieve the second condition. The trademarks are a “source identifier,” and the hashtags that can fulfill these criteria can qualify for registration under the Trade Marks Act.

Also Read: Should I trademark my Logo? 

How to trademark a hashtag?

The process of trademarking a hashtag is kind of similar to the trademark registration of a slogan. Hence, it involves the following steps:

Trademark Search

This allows you to check if there are existing marks even before you apply for its registration. Hence, if you are wanting to trademark your hashtag, you need to know how to do a trademark search in India. 

File TM Application

Identifying a tm class is not easy. So, many people take help from a trademark class search tool to ensure a proper search results. Once that is complete, you can file your TM application. 

Also Read: Documents required for trademark registration

Objection, Hearing, Opposition

After submission of application, the Trademark officer will examine your mark and if they find any discrepancies, they may issue an objection under section 9  or section 11 of the Act. Once you reply, you may get acceptance and then registration as a trademark. 

Passing Off and Infringement of Hashtag Trademark

A hashtag trademark is similar to the other trademarks. So, in India, you have similar remedies in case of passing off or infringement of hashtags. Passing off happens when a competitor tries to pass off their marks or hashtag as your well used mark in the same context. Whereas, hashtag trademark infringement happens when there’s unauthorized use of a registered trademark. 

Conclusion

While hashtags have become a standard feature in the digital landscape, the culture on which they depend can present some intellectual property challenges as they are common. Even if the registration of hashtags as trademarks in India is still not very popular, social media buzz is catching up with the masses due to the enormous growth in internet services in the past few years. Therefore, if you wish to get guidance or advice in relation to trademark registration of a particular hashtag, then feel free to reach out to our reliable team of legal professionals.