Social Media Handle or a Hashtag: Navigating IP in the Digital Era

In today’s digital driven world, branding and identity have taken a virtual leap. The rise of social media platforms like Instagram, Twitter (X), Facebook, LinkedIn, and YouTube has revolutionized how businesses and individuals project themselves to the world. Hashtags and social media handles have emerged as powerful tools for marketing, engagement, and identity-building. But as their commercial value grows, a vital question arises: Can you protect these digital assets under intellectual property laws, particularly by trademarking them?

What is a hashtag and How is it used Commercially?

A hashtag is a word or phrase preceded by the ‘#’ symbol, used widely on social media to identify topics, events, campaigns, and trends. While initially used for categorisation, hashtags have evolved into branding tools – some even becoming synonymous with products, services, or movements. Examples include #JustDoIt (Nike), #ShareACoke (Coca-Cola), or #MakeInIndia (Indian Government Campaign).

In India, there is no specific legal provision that addresses hashtags as trademarks. However, if a hashtag is used in connection with goods or services and meets the criteria for trademark registration, it may be eligible for protection under the Trade Marks Act, 1999.

Trademarking Hashtags: Legal Viability in India

While the Trade Marks Act does not expressly refer to hashtags, the interpretation of a “mark” is broad enough to include such expressions, provided certain conditions are met:

Distinctiveness and Source Identifier

A hashtag must be inherently distinctive or must have acquired distinctiveness through long and continuous use. For example, if #SwiggyIt is used consistently in marketing and has become associated in consumers’ minds with Swiggy’s services, it may be eligible for trademark protection.

Commercial Use in Trade

Mere use of a hashtag as part of online chatter or casual reference will not qualify. However, if the hashtag is used in advertising, packaging, and promotion of goods or services, it can establish a commercial identity.

Commercial Use in Trade

Even though hashtags are digital, they can be graphically represented in an application (e.g., #StaySafeIndia), satisfying one of the basic registration requirements.

Notable International Practices

Globally, several jurisdictions have allowed the registration of hashtag-based trademarks:

• United States: The USPTO permits trademarking of hashtags if they function as source indicators (e.g., #LikeAGirl by Always).
• European Union: The EUIPO has registered hashtags like #lovetravelling, provided they are not merely descriptive.
• Australia and Canada: These jurisdictions adopt a similar stance, requiring that hashtags must go beyond being a simple categorization tool.

While India has not seen a surge in hashtag registrations yet, the practice is legally permissible under the broad umbrella of existing IP law.

Trademarking a Social Media Handle

A social media handle (e.g., @zomato, @amul_india) is a digital username that often represents a brand, individual, or organization. These handles, especially when used consistently across platforms, act as valuable digital identifiers.

Social media handles can be trademarked in India subject to certain conditions:

• To qualify for trademark protection, a social media handle must be used in a manner that clearly identifies the source of goods or services essentially, it must function as a trademark. This means that casual or purely personal accounts typically do not qualify. However, a handle actively used by a business for customer interaction, advertising, and branding purposes may be eligible.
• The handle should not merely serve as a URL or username; it must function as a brand name. For instance, handles like @nykaabeauty or @bigbasketofficial may be protected if they are used prominently in marketing and brand communication.
• The handle must not conflict with any existing registered trademarks. If it is deceptively similar to another mark, it may face opposition during registration or even lead to infringement claims. Therefore, conducting a trademark search before finalizing a social media handle is a prudent step for any business.

Challenges in Registering Hashtags and Handles

Despite their potential, hashtag and handle trademarks face some practical and legal hurdles:

Hashtags that are purely descriptive or generic, such as #BestPizza or #BuyShoes, are unlikely to be granted trademark registration, as they lack the distinctiveness required under trademark law. Additionally, under the functionality doctrine, if a hashtag merely serves the purpose of categorizing content or enhancing search ability, it does not qualify for protection as a trademark. Another challenge arises from third-party claims — when a hashtag becomes widely popular and is used by multiple individuals or businesses, it becomes difficult for any single entity to assert exclusive rights over it. Moreover, even if a hashtag is registered as a trademark, jurisdictional conflicts can still occur. Domain names and social media handles typically follow a first-come-first-serve model, which can result in disputes or impersonation despite the existence of a registered trademark.

Enforcement and Remedies

If your trademarked hashtag or handle is misused or infringed upon, the Trade Marks Act, 1999 provides remedies:

• Injunctions against unauthorized use.
• Damages or accounts of profits for losses suffered.
• Customs registration to prevent import of infringing goods.
• Legal action under passing off, especially where goodwill is affected.

Additionally, most social media platforms have impersonation and trademark complaint mechanisms where brands can request takedown or reassignment of infringing handles.

Best Practices for Digital Brand Protection

1. Register Early: If your hashtag or handle has branding potential, file a trademark application to secure your rights.
2. Maintain Consistency: Use the hashtag or handle consistently in marketing and on packaging to build association with your brand.
3. Monitor Usage: Use tools to track unauthorized use or misuse of your digital identifiers.
4. Secure Domain Names: Where possible, register domain names and social handles that align with your trademark to avoid cyber-squatting.
5. Educate Teams: Ensure your marketing and legal teams work closely to develop IP-compliant digital campaigns.

Conclusion

The line between digital identity and legal brand protection is increasingly blurring. Hashtags and social media handles, once casual internet slang, have become valuable brand assets with commercial significance. Under the IP law, both can be protected through trademark registration, provided they function as identifiers of source, have distinctiveness, and are used in commercial contexts.

In the ever-evolving digital economy, businesses must adapt their IP strategies to cover emerging forms of brand identity. The future of trademark law in India may well involve more explicit recognition of hashtags and social handles, but until then, the existing legal framework is robust enough to offer meaningful protection.

Written by Zoya Javeriya Khan, Legal Intern at Intepat IP