Hashtag as a brand: sufficient distinctiveness?

A hashtag can be a valid trademark, but only if the sign has sufficient distinctiveness. This is not automatically the case: the hash symbol (#) does not in itself make a sign stronger or weaker. The decisive factor is whether the average consumer perceives the sign as an indication of the commercial origin of a product, and not merely as decoration or a popular slogan. Whether this is the case depends on all relevant facts and circumstances: the product in question, public perception, and the usual ways in which the sign is displayed.

What is distinctiveness for a brand?

Distinctiveness is the core requirement of trademark law. A trademark must enable the public to distinguish the products or services of one undertaking from those of another. Signs lacking this function cannot be registered as trademarks, because they do not fulfill their primary function—indicating origin.

It is assumed that Apple's apple and Nike's swoosh possess more than sufficient distinctiveness. With descriptive or everyday signs, the situation is more difficult. A word that merely describes the product (for example, “fresh bread” for a baker) generally lacks distinctiveness because it tells the consumer nothing about who is behind it. A hashtag falls precisely into that grey area: the hash symbol is a widely used sign on social media and can therefore be perceived as a trend or decoration rather than a brand.

Does the hash symbol (#) make a difference for trademark protection?

The hash symbol itself neither adds nor detracts from distinctiveness. The European Court of Justice considers the sign as a whole and the context in which it is used. A hashtag that merely represents a common expression or a topic of discussion is more likely to be regarded as a message or decoration than as a trademark. An original, unusual hashtag that is not common in the relevant industry stands a better chance.

The #darferdas case?: a hashtag for the European judge

The question of when a hashtag is sufficiently distinctive was addressed in a case before the Court of Justice of the European Union (judgment of 12 September 2019, Case C-541/18, AS v Deutsches Patent- und Markenamt). An applicant sought to register the mark #darferdas? for articles of clothing, in particular T-shirts, and for footwear and headwear (Class 25).

The German trademark office (Deutsches Patent- und Markenamt) refused the registration due to insufficient distinctiveness. The phrase “Darf er das?” means something like “is he allowed to do that?” – a common German expression. According to the office, it was merely a stylized representation of a subject of discussion. On appeal, the German court upheld that line.

Through an appeal in cassation, the highest German court referred a preliminary question to the Court of Justice. The core of that question is: does a sign have distinctive character when there are real possibilities in practice to use it as an indication of origin, even if that is not the most likely form of use? The underlying rationale: the same hashtag could also appear on a sewn-in label on the inside of a T-shirt, where the public might indeed perceive it as a trademark.

What did the Court of Justice decide?

The Court ruled that the distinctiveness of a applied-for trademark must be assessed on the basis of all relevant facts and circumstances. These include, among others:

• public perception: how the normally informed, reasonably attentive and cautious average consumer interprets the sign;
• the goods or services referred to for which registration is requested;
• the intended or expected use and the manner in which the mark is likely to be presented to the consumer;
• the habits in the economic sector concerned.

Importantly, the Court did not require that a sign be regarded as a trademark in every conceivable form of use. It suffices that there practically significant and demonstrable possibilities for using it in such a way that the public easily perceives it as a trademark. The assessment must take into account the forms of use likely in practice, not merely the most obvious ones. The Court left it to the national court to decide whether #darferdas? on the front of a T-shirt constitutes an indication of origin or is merely a decorative element.

This ruling thereby broadened the scope for registering a sign retroactively: even if the most obvious application is decorative, another practically relevant application (such as on a label) may be decisive.

What does this mean for entrepreneurs?

For entrepreneurs who want to build on an original name, slogan, or hashtag, there are a few concrete lessons to be drawn from this case law.

A hashtag is no guarantee

Anyone who thinks that a catchy hashtag is automatically protected is mistaken. Registration as a trademark is required first, and that only succeeds if it has sufficient distinctiveness. A hashtag that is common in your industry as decoration on clothing stands less of a chance than an unexpected, quirky variant.

Industry habits play a role

Are many hashtags printed on products as a decorative element in your sector? If so, this may indicate a lack of distinctiveness. Conversely, if it is unusual to print products with hashtags, the symbol is recognized as a brand more quickly.

Think about the usage in advance

Since the intended use is taken into account, it pays to thoroughly substantiate in the application how and where you will display the mark – on the label, on the packaging, or in advertising. A well-thought-out application increases the chances of registration and a strong trademark position.

How do you register a hashtag as a trademark?

If you want to protect a hashtag, you broadly follow the same route as for any word or image mark. The key steps at a glance:

1. Choose the correct area of ​​protection. For the Benelux, registration is handled by the Benelux Office for Intellectual Property (BOIP); for the entire EU, by the EUIPO. Determine in advance in which countries you wish to operate.
2. Determine the goods and services classes. Trademarks are registered for specific classes (such as Class 25 for clothing). Choose the classes that correspond to your actual and planned use.
3. Conduct a preliminary investigation. Check whether the mark is sufficiently distinctive and whether it conflicts with existing, older marks. This will help you avoid a refusal or a subsequent infringement claim.
4. Substantiate the use. Show how you use the hashtag in practice as an indication of origin – on labels, packaging, or in advertising – and not merely as decoration.
5. Submit the application and monitor the deadlines. After registration, you must use the trademark and renew it on time to maintain protection.

A preliminary trademark check prevents you from investing in a mark that turns out to be unprotectable later on. Our trademark can conduct this preliminary research for you.

Risks of a weak or unregistered trademark

Relying on a mark without sufficient distinctiveness entails risks:

• Rejected application: time and costs for an application that fails due to the absolute ground for refusal.
• No monopoly: without a valid trademark, you cannot prevent competitors from using a similar sign.
• Investing in the wind: marketing and brand awareness surrounding an unprotectable mark yield little legal grip.
• Subsequent conflicts: if it turns out later that someone else does hold a valid trademark, you yourself may face an infringement claim.

Frequently asked questions about hashtags as a brand

Can I register a hashtag as a trademark?

Yes, a hashtag can be registered as a trademark, provided the sign has sufficient distinctive character. The hash symbol itself is not decisive in this regard; the question is whether the public perceives the sign as an indication of origin.

Does the hash symbol (#) provide extra trademark protection?

No. The hash symbol in itself does not add or remove distinctiveness. The judge assesses the mark as a whole and considers the context, the intended product, and industry practices.

What exactly does distinctiveness mean?

Distinctiveness means that a sign can distinguish the products or services of one undertaking from those of another. It enables the consumer to recognize the origin of a product. Without this function, a sign cannot be registered as a trademark.

Where do I register a hashtag as a brand in the Netherlands?

For protection in the Netherlands, you register the trademark for the entire Benelux via the Benelux Office for Intellectual Property (BOIP). If you want protection throughout the entire European Union, the application is processed through the EUIPO. A separate registration solely for the Netherlands does not exist.

Why was the hashtag #darferdas legally contested?

Because “Darf er das?” is a common German expression, the trademark office considered that the sign resembled a slogan or decoration more than a trademark. The Court of Justice ruled that the national court must assess this on a case-by-case basis, taking into account all relevant circumstances.

How do I know if my brand is strong enough?

This requires a concrete assessment of the mark, the product, and the industry. A prior legal review prevents you from investing in a mark that later turns out to offer no protection. Therefore, have your trademark checked by a specialist beforehand.

Always a concrete assessment on a case-by-case basis

The most important lesson from the case law: the mere presence of a hashtag or another common sign says nothing in itself about distinctiveness. The assessment remains a case-by-case matter, in which public perception, the intended products, expected use, and industry practices all weigh in. It demonstrates once again that trademark law is not a simple matter.

Want to register a trademark securely? Have it legally reviewed

Do you want to register a name, slogan, or hashtag as a trademark, or are you unsure whether your mark has sufficient distinctiveness? Our corporate lawyers assess your mark, guide the application process, and assist with intellectual property. Practical, affordable, and without unnecessary legal red tape.

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