After attending my 3rd Summit, I’ve been reflecting on the presentations, conversations, and topics of interest. One that continued to pop up in each of those was hashtags. We use them for search optimization; we use them to get the attention of companies we admire; and we use them to signal to our audience that, yes, #wehaveasenseofhumor. See what I did there? However, what may not be a laughing matter is when you use someone else’s hashtag and they ask you to stop. Then there is the other side of the coin, when someone uses your hashtag, and you’d really rather them not. Are those instances considered infringement? Well, I wish I could just say, “Yes” or “No,” and we could all retire to the porch for a nice cold beverage. But alas, it is not the case. This is an emerging area- a gray area, so to speak. You know what that means. There will be litigation that follows.
According to some research nearly 1400 hashtag trademarks were filed in 2015. Okay, so that doesn’t seem like a lot. In 2010, only 7 were filed. That’s a 20,000% increase over 5 years—a fairly significant percentage, I would say. Now, hypothetically speaking, what if 1400 increases again over the next 5 years by, say 2000%? Now we are looking at 28,000 registrations. That is quite possible given that between 400,000 and 500,000 trademark applications are filed each year in the United States. If companies think that filing to protect a hashtag will protect their brand, especially where the law is unclear, many will do it in a split second.
According to federal trademark law, a mark is defined as a source-identifier which is a “word, name, symbol, or device, or any combination thereof” used “to identify and distinguish…goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods.”
A hashtag has been defined as a word or phrase preceded by a hash or pound sign (#) and used to identify messages on a specific topic. Hashtags are a form of metadata which is a fancy way of saying that it helps internet users organize and move through material on a specific subject on the internet and/or social media.
With social media becoming the fastest growing way to drive business to a website, it is no wonder that businesses were quick to catch on that, “hey, if we hashtag our brand or our tagline, that could bring more money to our bottom lines.” This has led to companies filing applications with the United States Patent and Trademark Office (USPTO) to protect their specific hashtags as a source identifier.
So it seems the real issue is that the definition of a trademark is a source identifier and what was the definition of a hashtag as a way to organize and sort material on the internet has found another purpose as source identifier. By its very nature identifying a source allows one to put it in a certain category or even organize it. So you can see why the legal lines get a little blurry because identifying a source (the purpose of trademarks) allows you to organized that source (the purpose of hashtags) more efficiently. So the courts and the law are now playing catch up to technology.
So what can you do as a creative business to make sure that you are protecting your brand and not infringing on another’s brand? These tips apply to all social media platforms, but for the sake of discussion, I’ve used Instagram as an example.
Using generic words like #retail or #interiordesign or #wedding2017 will definitely get you some likes on your IG post, however it will NEVER qualify as a brand that could be protected or a source identifier. So it is fine to use; just understand that there will be 523,481 other IG accounts using the same hashtags. So none of you roughly 525,000 IG’ers can lay claim to the exclusive use of that hashtag. Another reason to be choosy with generic hashtags is who knows what your carefully crafted, beautifully lit, photographic masterpiece will land next to in the virtual optic quilt of the Instagram search. Y’all know what I’m talking about.
If you are going to use hashtags as a source identifier, use them consistently. What does that mean? It means use the same lettering—don’t make it plural if you haven’t before. If you use a year or number, use the same one every time. If you are using a group of words to identify your brand, I’m gonna use The Southern C as an example here, use them in the same order. So The Southern C has strategically used “Connect” “Collaborate” “Create” almost as a tagline on their website on their collateral material, and during the Summit. As attendees and alums, we are encouraged to use #connectcollaboratecreate in our posts. At first the goal may have been to index the material, but the longer it is used it is beginning to identify the source. Again, however, one tricky little fact that you may have stumbled upon, if you don’t use the words in the same order as the originator of the hashtag, your post will end up in some strange vortex. That goes for both those who come up with the hashtag and those who are permitted to use it.
Okay, so you need to be a little strategic. Using a brand’s name without their approval happens every second of everyday. Please understand; I am not saying you should or shouldn’t do that. Just stating fact. However, this is the area where I see it getting a little grey. This is the area where brands are beginning to realize, although they may want some using their hashtags, they may not want ALL using their hashtags. If you have an established relationship with a brand then you are probably in the clear to use their hashtag. If you have no prior contact with a brand, then you are moving toward the grey area. It is really difficult to know what to do, since this area of the law is so unsettled. Some jurisdictions are upholding using the hashtag as infringement; others are not. So tread carefully and lightly.
If you are trying to gain protection for a specific hashtag, you should use it on all branding. It goes back to the purpose of trademarks which is being source identifiers. If you begin using the hashtag in branding and not just on social media, then the argument that you have moved out of the realm of organizing and indexing media on the internet is much easier to make and the potential for gaining trademark protection may be less difficult.
Many people live by the rule better to seek forgiveness than to ask for permission. Maybe so. However, it has been my experience that saying “I’m sorry,” after infringing on someone’s intellectual property is a fairly expensive apology to make. So again, if you feel that “I’m not sure what to do, but I want an answer” feeling. Contact an experienced intellectual property attorney.
So okay, everyone, take a deep breath. I can see that you have that deer-in-the-headlights look! Please don’t read this article and swear off hashtags. That is not the goal. The bottom line is to be aware—aware of how you are using hashtags and how your hashtags are being used. All of this discourse is not to rain on anyone’s hashtag parade or be Negative Nelly; it is simply to make my fellow creatives aware of an area that is beginning to gain legal traction. #knowledgeispower. #creativesprotectyourbrand.