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Using Someone Else's Trademark as a Hashtag Does Not Constitute Trademark Infringement

Ruey-Sen Tsai/Celia Tao

Hashtags are commonly seen on social media or online shopping platforms. A user may create a hashtag by placing a pound sign (#) in front of a keyword and the keyword will be turned into a clickable link. When the user clicks on the hashtag, he or she may find posts or contents with the same keyword. Since hashtags may foster consumer engagement and collect the scattered social media posts into one stream, more and more businesses start to utilize hashtags to boost their online visibility. 
However, in the current practice in Taiwan, whether using someone else's trademark as a hashtag constitutes trademark infringement is still an unsettled question.  In a recent civil litigation case regarding trademark infringement, the Intellectual Property Court expressed its opinion on this issue and concluded that using someone else's trademark as a hashtag is not an actionable use for trademark infringement.
The plaintiff in this case was an online seller of clothing, who obtained the registration of the trademark "QQBOW" and used the trademark to promote its services. The plaintiff asserted that the defendant used its trademark in the form of hashtag (#QQBOW) on an online shopping platform without authorization.  The plaintiff claimed that the defendant's conduct constituted trademark infringement and unfair competition under the Fair Trade Act. On the other hand, the defendant argued that that hashtag is only a tool for consumers to locate products on the shopping platform and it did not use the hashtag to indicate the source of goods or services. 
The Intellectual Property Court firstly explained that, in order to satisfy the requirement of actionable use in trademark infringement, the plaintiff had the burden of proof that defendant had the intent to use the trademark in the course of trade. In addition, the plaintiff had to show that the defendant actively used the trademark to indicate its own goods and the trademark was capable of being recognized by relevant consumers as an indicator of goods. 
The Intellectual Property Court then pointed out, the hashtag #QQBOW was only used as a tool to let users to find posts with the same hashtag on the online shopping platform. Since the users of the platform are familiar with the use of hashtags, hashtags will not be recognized by the relevant consumers as trademarks. Accordingly, the Intellectual Property Court ruled that the defendant's conduct was not an actionable use and did not constitute trademark infringement.
Additionally, the Intellectual Property Court stated that, since the plaintiff did not provide proof of how the defendant's use of the trademark QQBOW was an obviously unfair conduct that was able to affect trading order, it did not upheld the plaintiff's claim under the Fair Trade Act.