Hashtags and Trade Marks

Australian e-commerce has grown by 22% in 2018, and the number of people relying on testimonials from social media influencers before availing of a particular good or service is currently on the rise. One powerful tool in influencer marketing is the use of hashtags on social media posts as part of a companies' marketing campaigns.

A hashtag is a word or phrase following a hash sign (#, also referred to as the pound sign). The hash tag may be used across most social media platforms, such as Facebook, Twitter and Linkedin, and the string of characters following the # sign can direct online traffic toward a certain product or service. Influencer marketing and the growing reliance of consumers on people's actual experiences instead of traditional advertising before availing of a certain product or service have underlined the potential issue of trade mark infringement using hashtags.

Registering a hashtag trade mark and infringement

A recent update to the Australian Trade Marks Office Manual of Practice and Procedure included a discussion on hashtags and their registrability. Rules as to whether a hashtag can be used to commit trade mark infringement is analogous to previous issues with domain names and trade marks. Hashtag trade marks perform the same function as trade marks, that is, distinguishing the goods and services from those of the competition and serving as a badge of origin in relation to the goods and services. Infringement is qualified as the unauthorised use of hashtags as a trade mark for the aforementioned purpose.

Thus, if the text following the hash sign is already registered, then an actual hashtag trade mark may be unnecessary. However, a hashtag marketing campaign should be carefully considered in order to avoid infringing on a competitor's prior rights. There are currently no existing trade mark infringement cases involving hashtags, but the issue may expand similarly to domain name disputes.