When in a room which a bunch of people, it is easier to talk to each other about something specific, to get to know what everyone thinks about a particular thing/topic. Now if we multiply the number of people involved to reach about 75 crore people (which is approximately the number of people on the internet), it gets a little tough. What helps to track such conversation in this virtual world we are living in, are Hashtags. Hashtags are words/phrases preceded by a hash (#) symbol that can be used on most social media sites (say Facebook, Instagram, Twitter etc.) to open or track tweets or posts that have the same hashtag, practically those posts which are related to the same topic and a recent feature of Instagram allows users to even follow hashtags.
Trademarks on the other hand are used to make the consumers identify the goods or services and every internet user is a potential consumer. The Trade-Related Intellectual Property Rights (TRIPS) Agreement defines a trademark as ‘Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark.’ So, do hashtags pass this test of being Trademarks?
From the definition in TRIPS, we can observe that the main feature of any trademark is to let the consumer/observer know about the source of the particular item or product and on the internet, hashtags can be used to perform a similar function as posts can be identified with particular tags.
But can hashtags be used as trademarks? And if yes, what about registration?
Usage of a hashtag may result in increasing sales and boosting the popularity of any brand or product. Hashtags such as #NeverSettle or #MAKEITCOUNT can easily be identified with particular brands and can identify the source of something in the virtual world. Such source identification property makes a hashtag work as a trademark even though they don’t possess traditional trademark properties.
An important case in this regard is Eksouzian vs Albanese wherein a dispute arose among two companies regarding the usage of hashtag #cloudpen and the court, interestingly, held that hashtags are “merely functional tools and not an actual trademark” i.e. they are just descriptive identifiers and should not be considered as actual trademarks.
A guideline from the United States Patent and Trademark Office (USPTO) answered for the existence of hashtag trademarks. It stated that a hashtag alone cannot be considered as anything more than a generic symbol with no source-identifying significance. But, when a hashtag is used in conjunction with a name (of a product) or any campaign tagline, it may function as in the same manner as a trademark. Thus, adding the term ‘Hashtag’ or the symbol ‘#’ to a trademark that is unregistrable would not render it as registrable.
Position in India?
While there exists no such guideline specific to hashtag trademarks in India, an idea can be obtained from the existing trademarks law here. A trademark is defined in the Indian Trademarks Act under section 2(zb) as having two important features:
· Capable of being represented graphically.
· Capable of distinguishing the goods and services of one person from another person.
Now, in the light of these requirements, if we look our hashtag trademark, we can observe that a hashtag is capable of being represented graphically and due to the nature of its use a hashtag is fully capable of distinguishing posts of one person from another person. Thus, a plain reading of the act provides a subtle indication that hashtags can be trademarked in India too. But since there has not been any filing of any such trademark nor has there been any guideline issued by the concerned ministry, it cannot be said that hashtag trademarks are registrable in India. But one can draw a logical.
Eksouzian v. Albanese (2015 WL 4720478 (C.D. Cal. Aug. 7, 2015))
TMEP § 1202.18