Hashtags and Trade Marks
In 2024, Australian e-commerce has grew to 17.08 million Australian shoopers using online shopping websites every month, a 45% increase from 2020 (11.78%),The number of people relying on testimonials from social media influencers before purchasing of a particular product 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 businesses marketing campaigns.
A hashtag is a word or phrase following a hash sign (#, also referred to as the pound sign). The hash tag is be used across many social media platforms, such as Facebook, X and Instagram, 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 have highligted have underlined the potential issue in terms of trade mark infringement.
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 use constitutes a form of trade mark infringement is analogous to previous issues with domain names and trade marks. Hashtag trade marks perform the function of a more traditional trade mark, in that they can be sued to distinguish goods and services of the user from those of the competitors and serving as a badge of origin in relation to the goods and services. Infringement can therefore occur through the unauthorised use of hashtags for goods and services.
Where the text following at 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 prior rights. As of yet there have not been any reported trade mark infringement cases involving unauthorised use of hashtags, but this issue may well expand ia similar fashison to domain name and the IP disputes which arise around their usage.
