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Hashtags Copyright Overview
- Introduction: Hashtags Copyright
- The analysis of Trade Marks Act, 1999 with relation to Hashtags
- The United States Patent and Trademark Office (USPTO)
- WIPO On Hashtags
I. Introduction: Hashtags Copyright
Hashtags, these days have become insanely popular for commercial purpose as well as for providing a social message. This article will be dealing with the question of whether hashtags are intellectual property and if so, how exactly they will be considered as intellectual property.
The paper will also analyse the current intellectual property laws that are applied in India and the United States of America to address the issue of hashtags with special reference to the United States Patent and Trademark Office (USPTO). The author has also tried to look into the outlook that is presented by the World Intellectual Property Organisation when it comes to the registration of hashtags as trademarks. The author has tried to sum up the discussion on hashtags by providing an apt conclusion, including suggestions and recommendations.
A. What are Hashtags?
Hashtags are a word or a phrase that follows the symbol hash (#) and are a popular social media tool that is used in order to easily identify a post. Hashtags are primarily used in social media platforms like Facebook, Instagram and Twitter. It is a kind of metadata i.e. a set of data that describes and gives information about other data. So, what it basically does is to form a link between all related data in a particular social media platform. A specific hashtag for example #sunrise will link all the pictures that have the same hashtag on Instagram which makes it easy for the user to search all the pictures of the sunrise on Instagram.
The use of hashtags has increased manifold over the past decade. The use of hashtags has also increased as it effectively makes the post more attractive in the eyes of others. Such usage has also attracted the practice of use of hashtags as an advertising tool by many.
B. Under what category of Intellectual Property will hashtags fall under?
The question of what amounts to Intellectual Property is constantly evolving. With the constant evolution technology and the seemingly never-ending advancements, the question of what exactly can be included as an intellectual property comes to the forefront.
The question of what kind of intellectual property hashtags will be under is to be found out through an analysis of different kinds of intellectual property rights.
Intellectual property can be divided into three. They are:
- Patents, and
The first kind of Intellectual Property that we will analyse is Copyrights. Black’s Law Dictionary defines copyright as the right in the literary property as recognized and sanctioned by law. It is an intangible incorporeal right granted to the author or originator of certain literary or artistic production whereby he is invested for a specified period with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.
Section 14 of the Copyrights Act, 1957 defines copyright. The Section provides the right of copyright over literary, dramatic or musical work, artistic work, cinematograph film, and in case of sound recording. A proper perusal of the Section 14and the definition that is given above makes it crystal-clear that hashtags will not fall under copyrights.
The second group of Intellectual property that needs to be analysed is ‘Patents’. Patents refer to a grant of some privilege, property or authority made by the Government or the Sovereign of a country to one or more individuals. The instrument by which such grant is made is known as Patents. Section 2(m) of the Patent Act of 1970 defines what a patent is.
So, a patent, put plainly can be understood as an invention which is the creation of intellect applied to capital and labour, to produce something new and useful. Such creation becomes the exclusive property of the inventor on the grant of a patent. The patentee’s exclusive proprietary right over the invention is an intellectual property right. So, for a patent to be granted there needs to be an invention. In the case of hashtags, no invention is taking place. So clearly hashtags do not come under Patents.
The third group of intellectual property is a trademark. Article 15(1) of the TRIPs agreement defines trademark. It says that ‘Any sign or any combination of signs, capable of distinguishing the goods or service of one undertaking from those of other undertakings shall be capable of constituting a trademark.’
According to Section 2(1) (zb) of the Trade Marks Act of 1999, a trademark is defined as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours. Section 2(1) (m) defines what a mark is.
A hashtag is a hash symbol that is followed by a word or a phrase. The criteria that need to fulfil for something to be considered a trademark is given above. The features that constitute hashtags can be fit into these criteria. The analysis as to how exactly hashtags are Intellectual property under trademarks will be discussed in detail further ahead in this article.
II. The analysis of Trade Marks Act, 1999 with relation to Hashtags
The Trade Marks Act,1999 was enacted in view of developments in trading and commercial practices, increasing globalisation of trade and industry, the need to encourage investment flows and transfer of technology, need for simplification and harmonization of trademark management systems and to give effect to important judicial decisions.
The Trade Marks Act, 1999 is a statute which is very extensive and elaborate. In it, the term ‘Mark’ is defined under Section2 (1) (m). It states that
“Mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.”
In a subsequent Section 2(1) (zb) the term ‘Trademark’ is defined as follows:
“Trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods or their packaging and combination of colours.”
Both the terms are well defined and increase the ambit of what can be considered as a trademark.
So here let’s examine exactly how hashtags will come under the title of trademarks. The term ‘Mark’ in its definition includes word or numeral, or a combination of the word and numerals. Hashtag clearly fulfils the criteria to qualify as a Mark. When it comes to the definition of ‘Trademark’ on the other hand, the definition can be split into two parts for better understanding. The first part of the definition says that for something to be constituted as a trademark, it should be capable of being graphically represented. The second part of the definition says that the mark should be capable of distinguishing the goods or services of a person from another i.e. it should lead to identification.
The first part of the definition is easily satisfied by hashtags i.e. a graphical representation of hashtags can be made. The second part of the definition which states that the mark should enable the goods to be identified is the tricky bit.
Hashtags are common in the present world. Rarely so something is posted in a social media platform without the use of hashtags as it is considered as essential by the millennials if they want their post to gather more attention and positive remarks. Moreover, the time period for which a certain hashtag is used is often short. In India for instance, the trademark is granted for a period of 10 years. But the question comes in why to trademark a hashtag if only it’s going to last for a small period.
According to the second part of the definition, the mark should enable the customer to identify the source. So, if a hashtag enables a customer to identify the source, then it will fulfil the second part of the definition and can be given the tag of the trademark. And when the question of shelf life of the hashtag is put forward, if a certain hashtag enables the customer to identify the source, then such a hashtag will remain in usage with the continued existence of the social media platform.
Another aspect that needs to be looked into before hashtags can be taken into consideration for trademarks is whether such a hashtag is distinctive. The factor that contributes to identifying a trademark is its distinctiveness. So, it can be understood that distinctiveness is a contributory factor if the hashtag must be recognized as a trademark under the second part of the definition.
Additionally, Section 9 of the Trade Mark Act 1999 states that
“The trademarks which are devoid of any distinctive character, that is to say, not capable of distinguishing goods or services of one person from those of another, shall not be registered.”
Here, the usage of ‘shall not’ must be noted. This will amount to be an absolute prohibition on the registration of a trademark if it cannot be distinctive. So, if it can be shown that a hashtag is distinctive, then it can be registered under the Trade Marks Act, 1999.
III. The United States Patent and Trademark Office (USPTO)
According to the USPTO, a trademark is a word, phrase, symbol, and/ or design that identifies and distinguishes the source of the goods of one party from those of others.
So, in order for a hashtag to be registered in the United States, it should be a source identifier and also distinctive. In a USPTO guidance statement, it was given that
“A mark comprising of or including the hash symbol or the term ‘hashtag’ is registrable as a trademark of service only if it functions as an identifier of the source of the applicant’s goods or services.”
The registration of hashtags is now a common practice in the United States of America. But the criteria as stated above must be strictly satisfied.
The decision of which hashtags need to be granted trademark will be decided on a case by case basis. In US, the process to get a trademark registered lasts up to a period of 8 months. So, before applying for a trademark for a hashtag, the shelf life of that will have to be investigated as normally hashtags don’t have long term validity.
An important judgment that was given out in US in relation to hashtags was Eksouzian v. Albanese. This decision created uncertainty as to whether hashtags registered has any enforceable value. In this case, the court held that the use of a certain hashtag by one of the parties did not amount to a breach of the settlement agreement “because hashtags are merely descriptive devices, not trademarks, unitary or otherwise, in and of themselves”. The Court faced criticisms because it failed to consider whether a hashtag can function as a source identifier under the standard set forth by the USPTO. The decision rendered by the Court in this matter has led to confusion as to the function of the hashtag as a trademark and the validity of it.
The number of hashtags that are coming up for registrations has recently increased in the US and again these trademarks are granted on a case by case basis. Since the year 2013, the USPTO has granted over 100 hashtags.
IV. WIPO On Hashtags
The World Intellectual Property Organization, in an article that was published in its official website, mentioned that according to recent research, there has been a substantial increase in the applications for trademark-specific hashtags over the past decade. In the year 2010, the number of such applications was seven, and in the year 2016, the number of such applications was around 2200. So, it can be noted that within a short span of 6 years the number of trade-mark-specific hashtags has increased drastically.
The WIPO has attributed to this drastic increase in the application to the extensive usage of hashtags on the various social media platform. The fact that hashtags play a specific role in promoting interest and reactions to a product or service cannot be overlooked. The usage of the symbol by a large population which mainly comprises of the younger generation which forms a significant portion of the current market has also contributed to the rise in the trademark-specific hashtags. Such a symbol would facilitate the younger generation who are constant social media users to identify a certain product or service with the help of these hashtags. So, hashtags play a role as a very important marketing tool in today’s world.
To conclude, the authors would like to point out that the usage of hashtags as a marketing tool by certain enterprises is a good idea to boost sales as it gives the product or service lots of coverage in various social media platform. The trademarking of certain hashtags to ensure that they only point to a certain product or service seems necessary in some situations since the role played them in promotion is quite large. But the question on how to ensure that only those hashtags should be trademarked comes with a plethora of other questions. Numerous factors need to be considered when an application is presented for trademarking a hashtag. This will include the distinctiveness of the hashtag, the source-identifying capability, the shelf life of the hashtag etc.
Hashtags have commonly a short life. So, if at all a hashtag needs to be registered also comes into question. In answering this question, a thorough investigation must be conducted. For example, Nike put up its tagline as its hashtag i.e. #justdoit. The tagline has been used by Nike since 1988. So, the use of such a tagline as its hashtag has made it unique and such a hashtag clearly points out to Nike. Since this phrase has been used by Nike for a long time, it can be reasonably presumed that it will keep using it in the future as well. So, clearly that phrase is not going anywhere. And this guarantees a long shelf life to that hashtag.
So, all these factors must be kept in mind before a hashtag is registered as a trademark, and it being a trademark has to be protected under the law both nationally and internationally.
- B.L. Wadehra, Law Relating to Intellectual Property(5th ed. 2011)
- Cornish, Lewlyn & Aplin, Intellectual Property: Patent, Copyrights, Trademarks and Allied Rights (8th 2013)
- Narayanan, Intellectual Property Law (3rd ed. 2013)
- Claire Jones, Hashtag Trademarks: What Can be Protected? (Oct 2017), https://www.wipo.int/wipo_magazine/en/2017/05/article_0009.html
- USPTO, Trademark, Patent, or Copyrights?, https://www.uspto.gov/trademarks-getting-started/trademark-basics/trademark-patent-or-copyright
- Carrie L. Kiedrowski and Charlotte K. Murphy, Are Hashtags Capable of Trademark Protection under U.S. Law? (Feb 1, 2016),
 Eksouzian v. Albanese, CV 13-00728-PSG-MAN, 2015 U.S. Dist.