Should we try to trade mark a Twitter #hashtag?

Social media is simply another medium through which companies can advertise their product offering, in much the same way as in the past “doing business online” was new and exciting; but this still sits alongside traditional advertising media such as radio and TV advertising, paper advertising and word of mouth.

So do businesses need a whole new strategy to protect their social media campaigns, or should this simply be treated as part and parcel of existing brand protection strategies? And do Twitter hashtags need special treatment during the trade mark registration process?
In much the same way that slogans and straplines don’t benefit from special treatment during the registration process (although some commentators will argue that they are treated more harshly), Twitter hashtags still need to be approached in the same way as other brand elements. The question is does the hashtag meet the criteria for being registered as a trade mark? So we are back to first principles:

• Is the hashtag distinctive? Will people realise that it is supposed to be distinguishing your offering from that of someone else? This is potentially the biggest hurdle with many hashtags.

• Is the hashtag descriptive of your product offering in some way? If the answer is yes you have another hurdle as you cannot have exclusive rights in something others will genuinely want to use to describe their offering.

• Is the hashtag a generic term for your product offering? Again, competitors need to be able to use generic terms without fear of infringement.

Whilst there are other criteria determining the ability to register, these are likely to be the three key hurdles to address in considering possible trade mark protection for a hashtag. And if you obtain a registration, does this impact on how your hashtag is used in social media? To maintain a registration you need to control use. By the very nature of a hashtag you are encouraging third parties to make use and comment using the hashtag, which is somewhat contrary to the usual position with a trade mark. How do you control this? Will this lead to misuse of your hashtag in relation to third party goods? Will you be able to maintain the integrity of your registration and its ability to distinguish you from third parties? Is there a risk of damaging the reputation in your brand? These are going to be different challenges to the perhaps more straightforward question of whether or not you can obtain registration, and may lead to a revised approach to social media strategy, including choice of hashtag at the outset and the vision for how this will be used, monitored and controlled, so that any misuses are quickly spotted and addressed.