A hashtag is a type of label used on numerous social media sites, which makes it easier for users to find messages with a specific theme or content. Users can create and use hashtags by placing the hash character (or number sign) # in front of a word or phrase. Frequently specific hashtags will be indexed by the website operator. Searching for that hashtag allows users to locate the messages tagged with it. On Twitter, Instagram, Facebook and most other social media sites, hashtags are everywhere.
Brand owners frequently use hashtags to market their products and services. Using an appropriate hashtag can broaden the reach of a social media post to potential customers. If a hashtag functions as a trademark and will likely be used continuously so some time consideration can be given to obtaining a trademark registration.
A trademark that consists of or contains the hash symbol (#) or the word “HASHTAG” can be registered if it functions as a trademark and is not clearly descriptive. This means the trademark must be registrable, distinguish the brand owner’s goods or services from the goods and services of others and be “used” within the meaning of the Trademarks Act. For example, a registration has been obtained for "# SAYITWITHPEPSI" for use in association with soft drinks.
The Trademark Office position concerning trademarks that consist of, or contain, the hash symbol (#) or the word “HASHTAG is that such marks will be considered unregistrable under paragraph 12(1)(b) of the Trademarks Act if the trademark, as a matter of first impression is considered to be clearly descriptive or deceptively misdescriptive of the character or quality of the goods or services. Adding the # symbol or equivalent word to a clearly descriptive trademark will not render it registrable.
For example, the trademark "# ITALY" for shoes and the retail sale of clothing and shoes are considered to be clearly descriptive or deceptively misdescriptive of the place of origin of the goods and services since the trademark clearly describes that the shoes and clothing originate from Italy.
If you have questions, please contact me at mckeown@gsnh.com.
Goldman Sloan Nash & Haber LLP
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Toronto, Ontario M5G 1V2
Direct Line: (416) 597-3371
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Email: mckeown@gsnh.com
These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.
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