A hashtag is a keyword or phrase preceded by the hash symbol (#).
A hashtag is often used in online social media networking and communication through providers such as:
Twitter;
Instagram; and
Facebook
They are used to promote, comment on or provide information across various themes, such as:
News eg. #abcnews
Movies eg. #jurassicpark
Social cause movements eg. #greenpeace
Slogans eg. #lifesprettystraight – (Twisties slogan)
Social Media Platforms
Each particular platform (eg. Instagram) will have rules in regards to use of content.
For example, within Instagram’s terms of use it says:
“You may not use the Service for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Service and your Content (defined below), including but not limited to, copyright laws.”
“…the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights.”
“Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service…”
Accordingly, in using Instagram uses agree:
Not to infringe the legal rights of others, including any intellectual property (IP) rights;
Not to violate any laws in their jurisdiction (including but not limited to copyright and trade mark laws);
Instagram is granted a license to use the content that is posted to their platform, which would allow the content to be shared to others.
Rights of Intellectual Property Owner and Social Media Platform
Where an IP owner believes their IP rights are being infringed, they can make a complaint to the appropriate service provider. There is usually a prescribed form and other information to be supplied.
This may result in the service provider removing the infringing content from the platform.
Hashtags # and Copyright
Copyright in Australia is dealt with under the Copyright Act 1968 (Cth) (“CA”).
Protection under the CA extends automatically to works, such as:
literary,
dramatic,
musical;
artistic;
cinematograph film.
The question is whether hashtags may be protected as literary works under the CA?
Case law in Australia indicates that most hashtags are likely to be too short and insubstantial to constitute original literary works, and as a result the hashtags will be unlikely to attract protection under the CA.
Hashtags # and Trade Marks
Given copyright protection will in the most part be inadequate to provide intellectual property protection in regards to hashtags, IP owners looking to protect their IP in the form of hashtags are more likely to be successful in enforcing their rights through the law of trade marks.
Trade mark law in Australia in dealt with through the Trade Marks Act 1995 (Cth).
Section 17 of the Trade Marks Act 1995 defines a trade mark as follows:
“A trademark is a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person.”
A hashtag, being the # mark followed by a word or words, arguably is a sign and would fall within this definition.
However:
the symbol # is quite generic and in popular use; and
the particular hashtag must be capable of distinguishing the applicant’s goods or services from those of other traders.
Accordingly, it will be the word or words that follow the # symbol that will be important in being able to successfully register the mark. This would include an assessment of:
the degree of distinctiveness and referability the word or words have to the class of goods and services being provided by the applicant; and
whether the word or words are similar to those of other traders; and
whether other businesses should be allowed to use the word or words in connection with their businesses.
An example of a few brands that have successfully registered a # symbol as part of their trademark, include:
# WE LOVE GARDENS (TM 1842121)
# PLAY (TM1607269)
The other factor to consider is that having a registered hashtag trade mark does not automatically mean that others who use that mark are infringing your mark. This answer will depend on the exact circumstances, such as whether the alleged infringer had “used as a trademark” a substantially identical or deceptively similar sign to the mark you had registered.
For example, merely making reference to someone else’s registered mark, say:
as part of comparative advertising; or
other situations permitted under the Trade Mark Act 1995,
will not be conduct that infringes a registered mark.
It will depend on:
the circumstances; and
the content and context of the post connected to the hashtag.
The other point to note is registration of a trade mark in Australia only gives protection to the trade mark owner within Australia. If protection is also required internationally, then separate trade mark applications would be required relevant to the country in which protection is being sought.
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