Turning Hashtags Into Assets: The Legal Side Of Social Media Branding

When Digital Culture Meets Trademark Law

In the age of digital branding—where visibility is shaped by algorithms and attention spans are measured in seconds—hashtags have evolved far beyond their origins as simple indexing tools. What began as a way to categorize content has become a core element of brand identity, advertising strategy, and consumer engagement. Today, every serious marketing campaign, whether launched by a multinational corporation or an emerging startup, relies on hashtags to spark dialogue, build community, and amplify reach. The success of campaigns such as #ShareACoke, #ShotOniPhone, #MyCalvins, #JustDoIt, #ShareYourEars, and #HereToCreate illustrates just how deeply hashtags have embedded themselves in modern brand storytelling.

This evolution has raised a critical question in intellectual property law: Can a hashtag function as a trademark—and if so, under what conditions?

As digital culture continues to blur the line between communication and commerce, the legal status of hashtags has become both relevant and contested.

At a functional level, a hashtag operates as a metadata tag that aggregates content around a particular keyword or theme, thereby creating a searchable virtual reference point. Its commercial implications, however, extend well beyond this technical function. For instance, if a healthtech company were to employ a globally recognized hashtag such as #Coke in a promotional post, it could, by exploiting the hashtag’s indexing capability, redirect a segment of CocaCola’s substantial online traffic and associated goodwill toward its own marketing content. Such use effectively enables an unrelated entity to ride on the reputation and consumer recognition of an established brand. This potential for diverting consumer attention has led businesses to reassess their digital marketing practices and, increasingly, to seek trademark protection for hashtags as a means of preventing competitors from freeriding on their brand equity.

Global Recognition of Hashtag Trademarks

Trademark offices worldwide have begun acknowledging this shift. In 2013, the U.S. Patent and Trademark Office (USPTO) became the first authority to explicitly recognize that a hashtag—or any sign incorporating the hash symbol—can be registered as a trademark. Registration, however, is permitted only when the hashtag functions as a source identifier for specific goods or services. For instance, #HowDoYouKFC was granted registration because consumers clearly associated it with the KFC brand. The protectable element is not the “#” symbol itself but the distinctiveness of the underlying phrase.

Several global brands have since secured registrations for their promotional hashtags, reflecting a growing international willingness to treat distinctive hashtags as protectable intellectual property.

The Indian Perspective

India’s legal framework, though still developing in this area, aligns with this pragmatic global approach. The Trade Marks Act, 1999 does not expressly mention hashtags, but its broad definition of a “mark”—covering words, phrases, letters, numerals, and combinations thereof—is flexible enough to include them. The central inquiry remains unchanged: Does the sign distinguish the goods or services of one enterprise from another? If a hashtag is used consistently as part of a brand’s identity and consumers begin to associate it with a particular source, it may satisfy this requirement.

The EU and UK Approach

The EUIPO and UKIPO similarly recognize that hashtags may be registered as trademarks, but only when they possess distinctiveness and function as indicators of commercial origin. Both authorities emphasize that the mere addition of a “#” symbol does not convert an otherwise descriptive or promotional phrase into a registrable mark. Hashtags used solely as slogans, calls to action, or social media prompts are unlikely to qualify unless consumers perceive them as identifying a particular business. This reflects a clear international consensus: only those hashtags that transcend their basic tagging function and acquire distinctiveness through use can be protected.

Case Study

A notable Indian illustration is Frankfinn Aviation Services Pvt. Ltd. v. Tata SIA Airlines Ltd., where Frankfinn alleged that Vistara’s use of FLY HIGHER and #FlyHigher infringed its registered mark FLY HIGH. Although the Delhi High Court initially granted an interim injunction, it later vacated it. The Court observed that Vistara used “FLY HIGHER” in a descriptive, promotional sense, not as a trademark, and always alongside its wellestablished Vistara brand—significantly reducing any likelihood of confusion. Vistara ultimately agreed to use the phrase only as a nontrademark advertising expression, without asserting proprietary rights over it. The case underscores a crucial reality: not every hashtag is capable of trademark protection. Generic, descriptive, or commonly used phrases—especially those that merely convey a message or aspiration—are unlikely to qualify, even when presented in hashtag form.

Strategic Considerations for Brands:

Before rushing to file a trademark application for a hashtag, brands should apply a few practical filters:

1. Does the hashtag indicate source?

If a consumer encounters the hashtag in isolation, would they think of your business—or simply see a topic label or slogan?

2. How descriptive is it?

Hashtags like #OrganicCoffee or #SydneyLawFirm merely describe goods or services. Such terms rarely function as trademarks and face steep hurdles at the registry.

3. Is it part of a longterm brand strategy?

A shortlived campaign hashtag may not justify the effort of registration. But a distinctive, coined, or enduring phrase—one you intend to build equity around—might.

As digital culture collapses the divide between social interaction and marketing, forwardthinking brands will treat hashtags not as disposable campaign props but as symbols capable of embodying—and legally protecting—their commercial identity.

The Enforcement Challenge

Even with a registered hashtag trademark, enforcement is far from straightforward. Hashtags are inherently participatory tools, designed for widespread public use. Distinguishing between bonafide user engagement and infringing commercial use can be difficult, and overly aggressive enforcement risks alienating the very communities that give hashtags their value. Platforms such as Instagram, Facebook, and X offer mechanisms to report trademark misuse, but these tools primarily target clear cases of impersonation or counterfeiting. Effective policing often requires a combination of manual monitoring, automated alerts, and targeted takedown requests. A practical, proportionate enforcement strategy is essential.

A Balanced Approach to Protection

The decision to pursue registration should never be made in isolation. Before claiming exclusive rights over a hashtag, brands should ask: Does this hashtag genuinely function as a source identifier, and does its protection justify the investment of time, cost, and enforcement effort? Transforming a hashtag into a protectable brand asset requires more than creativity. It demands strategic planning, consistent use, legal foresight, and an understanding of how digital audiences interact with language. With thoughtful design and proper protection, hashtags can evolve into durable elements of a brand’s identity.

Ultimately, a hashtag is registrable only when it performs the true legal function of a trademark: signifying the commercial origin of goods or services. Distinctiveness and source identification are nonnegotiable, and context matters enormously—the same phrase may be descriptive in one environment yet operate as a badge of origin in another, depending on consumer perception.

As companies, professionals, and creators navigate an increasingly competitive digital landscape, integrating IP strategy into social media branding is no longer optional—it is a competitive necessity. Understanding the trademark implications of hashtags is a smart first step toward building a resilient, futureready brand strategy.

Darshi Mankad

Darshi leads the Trademark Opposition and Rectification Department, advising clients across diverse sectors on national trademark portfolio management, including prosecution, opposition, and cancellation proceedings before the Trade Marks Registry. She also provides strategic guidance on brand adoption and protection, and has extensive experience drafting and negotiating commercial agreements such as franchise, production, brand‑use, licensing, and service contracts. A dual graduate in Law and Business Administration and a Gold Medalist in her Master’s in Business Law, she has participated in leading IP conferences and has served as a guest lecturer at premier institutions including Gujarat National Law University, Karnavati University, Silver Oak University, and Pandit Deendayal Energy University (PDEU).

Aditi Singh

Aditi Singh is an Associate at Y.J. Trivedi & Co., specializing in the Opposition Department. With a B.A. LLB (Hons.) from ICFAI University, Dehradun, she adeptly manages the firm’s trademark opposition and rectification proceedings. She contributes meaningfully to the firm’s contentious trademark practice through her analytical skills and commitment to detail.