Over the past few months, there has been an interesting trend in trademark law around the world, with the creative use of social media technologies colliding with the creative use of the trademark registration system. Yes, I’m talking about #trademark mania, aka the rush to trademark hashtags.
We can talk about the scruples of trademarking a hashtag for hours, but let’s instead look at two big intellectual property questions: Are hashtags protectable as trademarks? Can these short phrases be registered as source identifying terms?
On social media platforms (notably Twitter and Instagram), adding a hashtag, or # symbol, in front of a word or phrase turns it into a searchable link. Like any communication platform, there is a cultural aspect to the use of hashtags. Some people use hashtags to identify topics they are discussing or to see what others are saying about that topic. Some people use hashtags to connect in Twitter meetups, to criticize or praise companies (check out #fail for example), or to talk about products or services in a manner that may implicate trademark law.
Controlling the Public Use of Hashtags
Because hashtags are part of the social media vernacular, widely used, and an important component of an effective social media strategy, companies routinely encourage people to use a particular hashtag to create a buzz around a new product, service, or marketing campaign. Hashtags can also be used to promote brands in advertising, packaging or on retail products. Some companies are taking hashtags a step further by pursuing trademark protection. Coca-Cola, for example, has applied to register US trademarks for #smilewithaCoke and #Cokecanpics.
Looking at it from a trademark law perspective, there is a potential for trademark protection if a particular hashtag identifies a brand or product or features a tagline that a company uses as a source identifier, which may be the case with Coke. On the other hand, if a company uses a generic term in their hashtag, like #cheapflights, it’s less likely that a company is going to create brand buzz, let alone obtain trademark protection.
Should We Even Consider Protecting Hashtags as Trademarks?
As you might guess, hashtag strategies don’t always work out. If the hashtag is successful, others may pick it up and use it for reasons not intended by the original user. And this can be more than just annoying to a brand owner. Hashtags can be hijacked, for example. #Qantasluxury is one example of a hijacked hashtag. It has been used for chartering a Greyhound bus that arrives days before your grounded Qantas flight – definitely not what Qantas the airline had in mind!
When the original use involves trademarked products and brands, a hashtag can backfire if competitors pick up on that hashtag and use it in an effort to associate their own products with that hashtag. As a result, consumers may be misled or confused into believing that the hashtag refers to someone else’s product or ad campaign. When the American charity the Amyotrophic Lateral Sclerosis Association (ALS) was promoting their #icebucketchallenge campaign in 2014, I can only imagine how unhappy they were when other charities hijacked the campaign in an effort to boost their own donations.
Even if a company is successful in obtaining a trademark registration for a hashtag, that company is likely to encounter significant issues when trying to protect and enforce that trademark across social media platforms. Many of these platforms allow users to post whatever they like whenever they like. There are no requirements for the post to be cleared before it’s available to the world – how do you police the use of your trademark in that environment? There are also a number of social media management platforms that collect and make postings available forever, so even if a tweet is later deleted, it will live on in other systems.
Most hashtags contain either generic terms (#cheapcars) or lack a distinctive character that is worthy of trademark protection. Like every day words and phrases, these hashtags should not be registered by the US Patent and Trademark (PTO) office or appropriated by companies in an effort to prohibit others from using the mark.
However, the line between hashtags that are generic and hashtags that may be considered brand identifiers is less than clear. As a philosophical matter, if the phrase making up the hashtag is inherently distinctive or has been used by the brand to identify its goods or services, then the PTO should consider it for registration, just like any other word mark. If a company can show massive marketing and general public use of a hashtag to identify their stuff, I’m game for protecting it.
Coke notwithstanding, it remains to be seen whether brands seeking to register their hashtags as trademarks will become successful or commonplace. The quickly changing nature of social media means that, in most cases, there may be little to gain in trying to prevent others from using a particular hashtag.