One of the questions that I received this week from a client was, “Can a hashtag be a trademark?” And the answer to that is actually not as simple as you think. It really depends on how you’re using it.
I think the ultimate question comes down to what is a trademark? Oftentimes people don’t understand what is their trademark. And so your trademark is any sign, anything that you use to identify your business in the marketplace as the source of your products and services. So trademarks are source identifiers. They’re badges of origin. They’re tools that communicate to consumers that your business is the source of your products and services.
That’s a very legal definition of what is a trademark. I think though, the way to kind of simplify it for a lot of business owners is to just really point out the main types of trademarks. I mean, you can get some really unique types of trademarks that are out there, but the main types really are names, logos, and taglines. Name trademarks obviously are the most common because most consumers use names, words, to identify who made and then who is selling a particular product or service. And so within the name trademark category, you really can have a couple of different types. The main, or the obvious type, is really a business name. A business name can function as a trademark if you’re also using it to identify the source of products or services.
Apple Inc would be a good example, because the business name is Apple Inc, but they also use the word Apple to indicate source of origin.
Apple is a great example of the other type of name trademark, which is a unique product or service, like a name for a product or service. So while Apple is a trademark, which is a badge of origin, they also have trademarks like iPad, Apple Watch. These are trademarks or specific products that Apple sells.
You could consider them as sub-brands. They’re sub trademarks with Apple being the primary trademark for the company and then different brands for different products and services that they offer.
And Apple also has one of the most recognizable logos out there, which is the little apple. Anyway, it just goes to show that a logo is another very common type of trademark and over time can become a really powerful source identifier for products and services.
So for example, the swoosh sign for Nike, I mean, you don’t need to see the word Nike if you see that swoosh sign. You know it’s a product of Nike. So that’s a very good example of a logo functioning as a trademark.
And Amazon has got another very recognizable logo, which is the little smile with the arrow. You don’t need to see the word Amazon to know that a box bearing that logo has come from Amazon.
Let’s not forget the arches of lovely McDonald’s. You’re driving down the highway, you see those arches, you don’t even need to see the name and you know the type of restaurant that you’re going to encounter. And then that leads us to our third major type of trademark is a tagline. And taglines are also very powerful source identifiers for products and services. I mean, Kim, you mentioned Nike has got a very recognizable name, logo, but they also have a very recognizable tagline.
A lot of companies have taglines. “It’s finger licking good.” Once you see that you’re talking about a scrumptious piece of KFC chicken. So that’s a type of slogan or tagline functioning as a trademark.
The original question of whether hashtag is a trademark, it really depends on whether you’re using the hashtag as a source identifier for a product or service. Now under Canadian trademark laws, if you were using a hashtag as a product mark, it has to be on the product or the packaging. So hashtags would be more likely to be a trademark for a service, but you also have to have a connection between the service and the hashtag. Whether a hashtag is a trademark really depends on how you’re using it. The main thing you really need to think about is, is your name, is your logo, and is your tagline protected.
It all comes down to that. Once you have your trademark, you need to make sure that it’s protected and you need to make sure that you even own it. Register it to protect your trademark.