How to Protect Your Hashtags
And not make a hash of it.
Hashtags are used on various social media outlets to allow the search and aggregation of messages directed at a particular theme. From an intellectual property perspective, the seminal question is, can hashtags be protected, or in other words monopolized by one person?
Trademark Protection
A trademark identifies the products of a particular person, known as the owner of the mark. Words or phrases can be trademarks, so a hashtag is eligible. In Canada, an owner acquires trademark rights by “using” the trademark. If you have coined a hashtag, and want to establish trademark rights in it, you need to ” use” it. How do you do that?
If your product is services, displaying the hashtag in your promotional and advertising material counts as “use”, and enables you to acquire trademark rights.
If you sell goods, you need to display the trademark on the goods themselves, on product packaging, or in some other way that the purchaser associates the mark with the product at the time of purchase or delivery. FYI, use in advertising of goods does not generate trademark rights under our Trademarks Act. (for a further explanation, see this article on trademark “use” [insert link to “use” article]).
So, if someone displays a hashtag in one or more of these ways, that person is “using” the hashtag in a trademark sense, and can claim trademark rights.
Inclusion of a hashtag by someone other than the owner in a social media posting merely to allow that posting to be searched and aggregated, should not constitute “use” as defined in the Trademarks Act. That is important to the person who has coined and wants to exercise rights over the hashtag. When someone else “uses” an owner’s trademark, the owner must exercise some control over that use, through a license. In this example, since the other person is not using the hashtag as a trademark, a license is not required.
Copyright Protection
Let’s consider whether copyright may be applicable to hashtags. Apart from the #symbol itself, a hashtag usually consists of a word or short phrase . Generally speaking, copyright law does not protect single words or short phrases. To be protectible under copyright, a work has to evince some originality – the application of creative thought. A single word or short phrase is unlikely to meet that standard. Hashtags are in many ways analogous to titles. Titles are usually brief and simple in structure, and so are generally not protectible as copyright works unto themselves, because they are not seen as embodying sufficient originality/creativity. That is why there are several instances of the same title being applied to multiple musical works, literary works and/or dramatic works authored by different individuals. By analogy, under copyright law, most hashtags would not be protectable. There might be an exception for a very unusual word or phrase. Think for example of the word “Supercalifragilisticexpialidocious”. A comparably unusual and lengthy word would make an unwieldy hash tag, but quite possibly a protectible one.
Are people trying to use copyright registration to establish or enhance rights in hashtags? It appears so. In the online records of the Canadian Copyright Office, one can find evidence of works whose titles consist of one or more hashtags - see for example:
Regn. no. 1166773 for #NewCanada #newcanada #newcanadaRising #NewCanadaRising #newcanadarising (characterized by the applicant as a literary work)
Regn no. 1157242 for #GENERATION:OCEAN #GENERATIONOCEAN #generationocean #generation:ocean #Generation:Ocean #GenerationOcean (characterized by the applicant as a dramatic work)
Regn no. 1100107 for #LoveAtFirstHashtag (characterized by the applicant as a literary work)
Note that when an author applies to register copyright in Canada, the work does not have to be deposited. The records of the Copyright Office therefore do not tell us whether there is a larger underlying work (such as a poem or novel), or whether the title is the entire work.
References
This thinking is reflected in the Copyright Act, R.S.C., 1985, c. C-42, specifically in the definition of “work” found in Section 2: “[W]ork includes the title thereof when such title is original and distinctive”.
From the eponymous song in the Disney movie Mary Poppins.