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With universal access to social networks and their use as first-rate commercial tools, new questions relating to trademark laws have come up.

One of these relates to hashtags (word or set of words preceded by a hash character which works as a metadata tag on Twitter, to identify messages related to a certain topic) and their registration as a trademark.

Its protection as a trademark depends on a series of factors which are both intrinsic (if the word or words comply with the requirements for any trademark) and extrinsic (if it is going to be used by its creator for a sufficiently long enough period to be worth registering and if its use infringes on the trademark rights of a third party).

A hashtag must comply with two general requirements to be considered a trademark: it must be able to be represented graphically, which it obviously complies with, and be distinctive. This latter point is important given that many hashtags are composed of merely descriptive words regarding the service or product that they are attempting to differentiate. These cannot be registered as trademarks. It is possible however, for that word, or combination of words to be considered to suggest or allude to a service or product but they must retain a certain degree of difference.

In the event of apply for its registration, it will suffice to select those classes consisting of products or services which are to be promoted or distinguishable, without needing to include, for example, class 38 (telecommunication services) given that, unless the services offered are of this nature, the mere fact of using the hashtag in a social network does not imply its registration in this class.

On the other hand, for hashtags whose “useful life” is brief (and by definition all are, given that, on the whole, we are talking about a few days or even hours) perhaps there is no sense in registering them. Registration has an economic cost and at best takes five or six months.

Finally, if after weighing up the above and deciding to initiate the registration of a hashtag as a trademark, it is essential to be aware that this can infringe upon the trademark rights of a third party if it is identical or similar to a registered trademark or identifies products or services performed by the latter. For this reason it is recommended that even before its publication, for those which are not purely descriptive, a prior search be performed to ensure that this type of problem will not occur.

Pablo López Ronda