Trademarking hashtags – an #unenforceable or #inevitable move for businesses?

Social media is now a core element of most companies’ communication strategies. Dynamic and evolving, it is a unique, easy way to inform, engage and share information with target audiences.
Twitter, in particular, has developed rapidly from a social networking platform into an environment where businesses promote their brands, position themselves as thought leaders and communicate corporate messages.

And underlying all this activity is the effective use of hashtags.

For SMEs, creating an online ‘trend’ is a great way to get noticed and introduce their products or campaigns to larger audiences. Using a hashtag allows firms to easily track the conversations, to understand how popular their products or services are – and to generally increase awareness online.

Such is their power that some companies now consider hashtags a form of intellectual property and have tried to trademark those that directly relate to their businesses.

In the US, you can trademark a hashtag if you are providing a product or service to the public associated with it and you can use it to brand that product or service on printed surfaces or online material. However, this will only protect you from other organisations in the same industry using your hashtag to compete with you.

It won’t stop people using it on Twitter, nor will you be able to make a claim if it is posted in a way you disagree with, and Twitter will only act on accusations of trademark violation if somebody is using another’s trademark to mislead consumers.

In the UK, there is no legal provision for social media trademarking – with no copyright protection given to acronyms or singular words – and there have been no infringement cases on hashtag use.

This won’t change overnight and even if it did, current technology would only give limited protection. A company would have great difficulty enforcing a trademark on social media platforms because post removals are often impossible when the hashtag is popular or ‘trending’.

Anyone can start a hashtag, which in turn can be freely picked up by any third party. If it becomes popular, a brand promoting a hashtag may find competitors or others it does not wish to be associated with using the term. There are many high-profile examples of companies losing control of hashtags that incorporate their trademarks, including Coca-Cola’s #cokecanpics and #smilewithacoke, and Nike’s‘#makeitcount’.

However, legislation changes and digital capabilities evolve at great speed. And there is increasing evidence that companies are using hashtags in a trademark sense, particularly as part of a larger marketing strategy. As such, demands for legal clarification will grow and it is perfectly reasonable to assume that such trademarking will be permitted and enforceable in the not-too-distant future.

Companies embarking on a long term interactive marketing campaign may find that it is worth taking advice on trademarking themselves online – even though it is not currently enforceable – to protect the value and integrity of the brand in the event of future rule changes and e-advances.

And even if you don’t intend to purchase the word or term you want to hashtag, it is a sound policy to check whether it is already trademarked. That way, you will avoid trouble if protection can be enforced in the future.

By Giles Searby, partner, specialising in intellectual property disputes, hlw Keeble Hawson.