Can Competitor Hashtags Cause Trademark Infringement?

Introduction

Businesses increasingly use Instagram hashtags to attract users searching for particular products, services, or brands. A competitor’s registered trademark may therefore become valuable search traffic when used in captions, comments, reels, stories, or promotional advertisements.

Using a rival’s trademark as a hashtag does not automatically establish liability. The legal question is whether the hashtag constitutes unauthorized use in commerce that is likely to cause confusion, mistake, or deception regarding the source, affiliation, sponsorship, approval, or origin of the goods or services.

Governing Philippine Law

The principal statute is the Intellectual Property Code of the Philippines, or R.A. No. 8293. Section 147 gives the owner of a registered mark the exclusive right to prevent third parties, without consent, from using identical or similar signs or containers in the course of trade for identical or similar goods or services where such use is likely to cause confusion.

Where an identical sign is used for identical goods or services, the likelihood of confusion is presumed under Section 147.1 of R.A. No. 8293. This protection is subject to statutory limitations, including bona fide use of names, addresses, geographical names, and accurate descriptions for identification or information purposes under Section 148, provided that the use does not mislead the public as to the source of the goods or services.

Section 155 of R.A. No. 8293 defines trademark infringement. It covers the unauthorized use in commerce of a reproduction, counterfeit, copy, or colorable imitation of a registered mark, or of the same container or a dominant feature, when the use is connected with the sale, offering for sale, distribution, advertising, or preparatory steps for goods or services and is likely to cause confusion, mistake, or deception.

Section 155 also provides that infringement occurs when the prohibited act is committed, even if there has been no actual sale of goods or services using the infringing material. Thus, a business may face exposure before completing a sale if the unauthorized hashtag is used in a commercial promotion that satisfies the statutory requirements.

When Can a Hashtag Become Trademark Use?

A hashtag may be treated as trademark use when it is employed as part of a commercial message, advertising campaign, product promotion, or customer-acquisition strategy. The fact that the mark appears with a “#” symbol does not, by itself, remove it from the scope of trademark law.

The relevant circumstances may include:

• whether the hashtag contains or imitates a registered trademark;
• whether the account using it promotes or sells goods or services;
• whether the competing goods or services are identical, related, or marketed to the same consumers;
• whether the hashtag is intended to divert searches or users looking for the trademark owner; and
• whether the overall post suggests affiliation, sponsorship, approval, or commercial connection.

A purely private, noncommercial reference may present a different question. The risk substantially increases when the hashtag is attached to paid advertising, product listings, discount offers, sales announcements, influencer campaigns, or links leading to the competitor’s products or services.

Trademark Infringement Under Section 155

For civil trademark infringement, the usual inquiry under Section 155 of R.A. No. 8293 requires proof of a registered mark, unauthorized use of a reproduction, copy, counterfeit, or colorable imitation, use in commerce in connection with goods or services, and likelihood of confusion, mistake, or deception.

In Ginebra San Miguel, Inc. v. Tanduay Distillers, Inc. (G.R. Nos. 196372, 210224, 216104, and 219632, 2022), the Supreme Court quoted Section 155 and recognized that infringement may occur through the prohibited commercial acts even without an actual sale of goods or services using the infringing material. [Ginebra San Miguel, Inc. v. Tanduay Distillers, Inc. (2022)](#J1.134)

The same principle may apply to a competitor’s Instagram hashtag when the hashtag is used to promote competing goods or services and its use is likely to make consumers believe that the post, account, promotion, or product is connected with the trademark owner.

Likelihood of Confusion

Likelihood of confusion is the central inquiry. Courts may consider the visual, phonetic, and conceptual similarity of the marks, the nature of the goods or services, the channels of trade, the typical purchasers, the degree of care exercised by consumers, and the surrounding commercial circumstances.

In Prosource International, Inc. v. Horphag Research Management SA (G.R. No. 180073, 2009), the Supreme Court recognized the Dominancy Test as focusing on the dominant features of competing marks and the likelihood that their aural and visual impressions will mislead or deceive purchasers as to source or origin. [Prosource International, Inc. v. Horphag Research Management SA (2009)](#J3.4)

Applied to Instagram, the analysis should not be limited to the hashtag in isolation. The post, account name, profile description, product photographs, logos, captions, links, pricing, and other promotional elements may collectively determine whether an ordinary consumer is likely to infer a connection with the trademark owner.

False Designation of Origin and Misrepresentation

Section 169.1 of R.A. No. 8293 separately addresses false designations of origin and false descriptions or representations. It applies when a person uses in commerce a word, term, name, symbol, device, or combination that is likely to cause confusion or deception concerning affiliation, connection, association, origin, sponsorship, or approval.

This provision may be particularly relevant when a competitor uses a rival’s trademark as a hashtag to make its own post appear in searches associated with the rival brand. It may also apply when the post implies that the competitor is an authorized dealer, franchisee, affiliate, sponsor, or approved service provider when that implication is false.

In Araneta Center, Inc. v. Perez (2013), the deciding court applied Section 169 of R.A. No. 8293 to unauthorized commercial use of a registered mark in a domain name where the use could confuse the public regarding affiliation or sponsorship. The reasoning is relevant by analogy to online commercial identifiers, although the case did not specifically decide the liability of an Instagram hashtag. [Araneta Center Inc. v. Perez (2013)](#I1.1)

Possible Civil Liabilities

A trademark owner may pursue civil remedies under R.A. No. 8293, including injunction and damages, subject to the statutory requirements and proof. A claimant may seek to stop the continued use of the hashtag, require removal of promotional material, and recover appropriate damages where the evidence establishes infringement or a false designation that caused or is likely to cause injury.

Section 169.1 expressly allows an action for damages and injunction by a person who believes that he or she is or is likely to be damaged by the false designation, false description, or misleading representation. The owner may therefore focus not only on direct sales but also on diverted traffic, consumer confusion, reputational harm, dilution of commercial identity, and damage to goodwill.

Section 170 of R.A. No. 8293 also provides criminal penalties for acts covered by Sections 155, 168, and 169.1. This article focuses on civil liability, but businesses should recognize that deliberately commercial use of a counterfeit or confusingly similar mark may create separate criminal exposure when the statutory elements are established.

Unfair Competition Considerations

Trademark infringement and unfair competition are related but distinct causes of action. A competitor’s hashtag campaign may support an unfair competition claim when it is part of a broader effort to pass off the competitor’s goods or services as those of another, or to create a false association with an established business.

The surrounding conduct is important. A hashtag accompanied by copied branding, similar packaging, misleading account information, false claims of authorization, or links designed to capture customers searching for the original brand may present a stronger unfair competition case than an isolated reference to the competitor’s mark.

The facts must still establish the elements of the particular cause of action. The mere fact that a business mentions another brand does not automatically prove infringement or unfair competition.

Statutory Exceptions and Defenses

Section 148 of R.A. No. 8293 permits certain bona fide uses of names, addresses, pseudonyms, geographical names, and exact indications concerning the kind, quality, quantity, destination, value, place of origin, or time of production or supply of goods or services.

The use must be confined to identification or information and must not mislead the public as to source. A reseller may therefore have a stronger defense when accurately stating that it offers genuine products of a particular brand, provided that the presentation does not falsely suggest official affiliation or authorization.

The defense becomes weaker when the hashtag is used primarily to divert consumers to unrelated competing goods, conceal the true source of the products, or suggest endorsement that does not exist. The commercial context and the overall impression remain decisive.

Examples of Potential Liability

Example 1: Direct competitor advertising. A coffee shop uses “#RivalCoffee” in a paid Instagram advertisement for its own coffee products, without permission, to appear in searches for the rival brand. If the goods are competing and the campaign is likely to cause confusion or divert customers through misleading association, the conduct may support a claim under Sections 147, 155, or 169 of R.A. No. 8293.

Example 2: False authorization. A repair business uses “#BrandOfficialRepair” even though it has no authorization from the brand owner. The hashtag, together with the account profile and advertisements, may create confusion about affiliation, sponsorship, or approval and may fall within Section 169.1.

Example 3: Accurate resale reference. A legitimate reseller uses a brand name to identify genuine products that it actually offers for sale, while clearly stating that it is independent and unaffiliated. This may be defensible if the use is truthful, necessary for identification, and not misleading under Section 148.

Example 4: Comparative advertising. A business uses a competitor’s mark in a truthful comparison that clearly identifies the source of each product and does not imply sponsorship. The risk may be lower, but the post should still be reviewed for misleading representations, unauthorized copying, and unfair competition concerns.

Evidence and Compliance Measures

A trademark owner assessing a hashtag campaign should preserve screenshots, screen recordings, URLs, dates, account information, captions, comments, paid-advertising disclosures, and evidence of search-result placement. It should also document consumer inquiries, mistaken messages, redirected traffic, lost sales, and other proof of confusion or damage.

The business accused of infringement should preserve the campaign brief, approval records, agency instructions, reseller agreements, authorization documents, targeting data, and evidence explaining why the mark was used. Removing a post may reduce continuing harm, but it does not necessarily eliminate liability for earlier use.

Before launching a campaign, businesses should conduct a trademark clearance review, identify whether a proposed hashtag contains another party’s mark, determine whether the use is commercial, and assess whether the post could imply affiliation or endorsement. Advertising agencies, influencers, affiliates, and platform managers should receive written instructions against unauthorized brand hijacking.

Conclusion

Using a competitor’s registered trademark as an Instagram hashtag may create civil liability when it is unauthorized commercial use that is likely to cause confusion, mistake, or deception. The risk is strongest where the hashtag diverts searches, promotes competing goods or services, or falsely suggests affiliation, sponsorship, approval, or origin.

Businesses should not assume that a hashtag is merely a technical search tool outside trademark law. Each campaign should be evaluated based on the mark’s registration, the commercial purpose of the post, the relationship between the goods or services, the overall presentation, and the probable perception of consumers.

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