The use of social media to generate interest in and responses to any conceivable event, goods, or service has become enormously popular. They are based on a culture of openness, sharing, and “real-time” marketing. Twitter was the first social media network to bring the idea of hashtags to the social media globe in 2006. As there is more user-generated material using hashtags, it becomes viral and creates a new trend. The hashtags #follow4follow #photography #dalgonacoffee, which were popular in 2020, and #dontrushchallege #makeupinsta #selfie, among others, became more popular in 2021. Some hashtags, such as #OOTD and #throwbackthursday, remain timeless and are used by social media users to caption their images when posting them online.
Therefore, using hashtags in your marketing and intellectual property tactics is quite pertinent in business. The issue here is: What is the legal procedure for doing so?
A hashtag is not long enough to be protected by copyright. It is not an invention or idea that would qualify for patent protection. Therefore, registering a hashtag as a trademark is the only way to protect it. The Trade Marks Act 1999 is an elaborate and complex piece of legislation
The examination of the Trade Marks Act of 1999 in light of hashtags. In it, Section2 (1)(m) defines the term “Mark.” It is stated that a mark can be a symbol, a logo, a heading, a label, a ticket, a name, a signature, a word, a letter, a number, the shape of a product, its packaging, a group of colors, or any combination of those things.
In accordance with Section 2(1)(ZB) of the Act, a “trademark” is defined as a mark that can be graphically represented and can be used to distinguish one person’s goods or services from those of others. This definition can include the shape of the goods, their packaging, and the combination of colors.
Trademark law, therefore, examines two essential requirements:
- it must be able to be graphically represented, and
- it must be able to differentiate the goods and services of one person from those of another.
Since hashtags are a graphically expressed mix of words and numbers, the first need is entirely satisfied for them to be registered as a trademark. The second circumstance, however, is where the actual issue lies. To qualify under trademark law, a hashtag must be able to serve as a source identifier for the brand or organization.
In fraternity collection LLC vs. Elise Fargnoli, The defendant, Elise Fargnoli, was found guilty by a US court of trademark infringement and false advertising. She was a fashion designer and a former employee of Fraternity Collection. She has advertised a product of rival fashion designs on her Instagram profiles using the hashtags “#fratcollection” and “#fraternitycollection.” When people clicked the hashtag, they were taken to the same fraternity collections designs, and attention was diverted to rival companies’ goods.
What are the current circumstances about using a hashtag trademarked by a brand? Does using a brand’s trademarked hashtag in a social media post subject you to legal consequences for trademark infringement?
Even if you file a trademark application for your hashtag, it won’t give you exclusive rights to use it in social media posts or stop other users from doing so. There may be grounds for infringement if the usage implies a relationship or link with the trademark owner or if it raises a possibility of confusion or an association with the trademark owner.
To sum up, social media aficionados are encouraged to #beware #payheed #proceedwithcaution even if hashtags are a great tool to advertise a business and generate interest in a marketing effort. In the same manner that a brand name should be protected under trademark law, hashtags should also be protected under IP laws.
BY- SANDHYA BALAJI
CHRIST UNIVERSITY, LAVASA
 Courtesy: Posted by PACERMONITOR in ‘Hashtags Become a Trademarking Battleground’ by Johanna Mayer on November 28,2016
 Fraternity Collection, LLC v. Fargnoli, 2015 WL 1486375, No. 3:13–CV–664.