Trademark Protection of Hashtags: An Overview

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In the recent years, social media has revolutionised the way people interact, communicate, and engage with brands and businesses. One of the most noteworthy developments in this new age of social media is the use of hashtags that are words or combination of words preceded by the symbol “#”. The purpose of a hashtag is to help the users discover contents pertaining to specific topics on a single click. These short phrases preceded by the “#” symbol have become a necessary tool not only for online communication and content organisation but also for brand promotion. The importance of hashtags is evident from recent activism campaigns across the world such as the #MeToo movement, #BlackLivesMatter etc. In the ongoing marketing scenario, one exemplary use of a hashtag for promoting a brand was by Coca-Cola which encouraged consumers to share a picture of anyone they would like to share their Coke with and use the hashtag #shareacoke. With hashtags playing a vital role in shaping digital branding efforts, the question now arises is whether these hashtags can be registered as trademarks?

Functional aspect of a “#” and its interplay with trademark

 Trademarks as intellectual property enable businesses to distinguish their goods and services with those from others, thereby helping consumers identify the source of these goods and services through distinctive words, phrases, symbols etc. The primary aim of trademarks is protection of reputation and goodwill associated with a particular brand enabling consumers to make the right choice.

While using “#” in physical world may not be of much significance, it plays a vital role on social media performing significant function of tagging of posts with a letter, word, or phrase. For brands, “#” is useful to create a tag between their social media content and their brand and thereby allowing users to explore the content related to their brand. In fact, the functionality of “#” can be compared with the functionality of a domain name both of which can be used to drive traffic to a particular address.

Accordingly, with the increase in use of hashtags as a means for brand promotion, there has been an overlap between hashtags and trademarks and businesses have started considering the possibility of registering their hashtags as trademark. However, response to the question whether hashtags can be or ought to be trademarked is not uniform across all jurisdictions and depends on the legal frameworks and evolving discussions in each country.

A case for trademarks on hashtags: Beyond protection against misrepresentation, preventing misuse of the # to redirect traffic 

The jurisprudence underlying the trademark laws is the protection of consumers by preventing misrepresentation regarding origin or ownership of a good or service. While grant of trademark on hashtags addresses the need of protection against unwarranted usage of hashtags and thereby preventing misrepresentation, it also addresses a problem which is unique to social media, i.e., usage of hashtags to drive traffic to a particular category of posts using the same hashtags. Granting trademark on hashtags and thereby monopoly over the use of such hashtags prevents unauthorized use of the hashtags which otherwise may be used by any brand to drive users to its own content and ride upon the popularity of another brand. A brand may use a hashtag which may be completely unrelated to its own good or service merely to tag its own social media content with the content pertaining to another brand for brand promotion and visibility on social media. Such unwarranted usage of hashtags pertaining to another brand not only leaves space for misrepresentation regarding the source of a good or service but also leads to spamming of unrelated content which may be tarnishing for the reputation of another brand and may affect user engagement for that brand.

Position in the United States of America and the United Kingdom 

The United States of America has been inclusive regarding the registrability of hashtags as trademark and in the year 2013, the United States Patent and Trade marks Office (USPTO) addressed it specifically in the Trade Mark Manual of Examining Procedure wherein it recognised that, “A mark comprising or including the hash symbol (#) or the term HASHTAG is registrable as a trademark or service mark only if it functions as an identifier of the source of the applicant’s goods or services. Generally, the hash symbol and the wording HASHTAG do not provide any source-indicating function because they merely facilitate categorization and searching within online social media. Thus, if a mark consists of the hash symbol or the term HASHTAG combined with wording that is merely descriptive or generic for the goods or services, the entire mark must be refused as merely descriptive or generic.” [i] Apart from the manual, even the US judicial precedents have been in favour of granting registrations to hashtags, for example, as held in the case of TWTB Inc. v. Rampick[ii], wherein the U.S District Court of Louisiana held that claiming hashtag as a trademark is valid and the use of the same can qualify as evidence of business.

In view of the aforesaid, the U.S has seen the highest registrations for hashtags as trademark, with some of the famous trademarks being #EVERYDAYMADEWELL[iii] by the famous clothing brand Madwell, #HOWDOYOUKFC[iv] for world renowned eating joint KFC, #9RGNG[v] etc.

Similarly, the United Kingdom’s jurisprudence also relies on distinctiveness as a criterion for trademark registration of a hashtag and one of the first registrations for hashtag in the UK was granted to #FreeCheeseFriday[vi] by Wyke Farms post evaluation of substantive evidence in order to prove distinctiveness. However, it is imperative to note here that although the said phrase is extensively in use by Wyke Farms as a hashtag all over social media, the registration has been granted to this phrase as a simple word mark sans the symbol “#.”

Position in India

Under the Indian Trademark Law, any device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof which can be represented graphically and is capable of distinguishing the goods or services of one person from those of others can be registered as a trademark.[vii]

A hashtag being capable of represented graphically, easily fits in the first criteria of trademark registration. However, the registrability of hashtags is subject to proving its distinctiveness which is also the primary criteria in registration of a hashtag as trademark in other jurisdictions as well. Generic hashtags, which are descriptive of the goods or services they represent, are unlikely to be considered distinctive and eligible for registration unless acquired distinctiveness is established. However, creative, and unique hashtags that go beyond merely describing the product or service have a better chance of being considered distinctive. As long as any hashtag surpasses the distinctiveness criteria, enabling the customers to associate the said hashtag with a party’s goods and services either inherently or by use, the said hashtag is eligible for trademark protection in India.

As discussed, the basic idea behind a hashtag is to promote a campaign regarding any brand or make the brand trend all over social media and the market. Hence, in order to keep the hashtags relevant, every brand must come up with new hashtags with the changing trends to maintain consumer’s attraction. Given, that endorsements through hashtags are usually short lived, even with such minimal quantum of use, one must prove that the hashtag is distinctive enough to be registered as a trademark.

One of the few examples of hashtag registered as trademark in India is #MadeWithLicious[viii] being used by a famous Indian brand Licious as a platform for people to share recipes made by the company’s raw meat and spices.” Trademark registration of hashtags will grant exclusive rights to the use of the hashtag in connection with the specified goods and services to the brand owners and shall also provide legal recourse against any unauthorised use or infringement by others. As hashtags are in use for brand promotion on social media, such hashtags when registered as trademarks, will enhance brand recognition creating a distinct identity of the brand in the market and shall also contribute in the brand’s overall goodwill and value.


Trademark protection for hashtags in India is a dynamic and evolving area of trademark law. As hashtags continue to play a pivotal role in brand communication, businesses must navigate the legal landscape to protect their hashtags effectively. Understanding the legal framework, proactive registration, and robust enforcement strategies are vital steps to safeguard brand identity and maintain a competitive edge in the digital era.

Authors: –   Ravi Chadha and Sakshi Mathur


[i] USPTO, TMEP, 1202.18, Hashtag Marks

[ii] TWTB Inc. v. Rampick, 152 F Supp 3d 549 (ED La 2016)

[iii] US Application no. 86677482

[iv] US Application no. 86062511

[v] US Application no. 86096020

[vi] UK Application no. UK00003205605

[vii] Section 2(m) and Section 2(zb), Trade Marks Act, 1999.

[viii] Indian Application no. 3924265

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