Watch What You Tweet: Hashtag Trademarks are Soaring

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The 2016 Summer Olympics was a wake-up call to marketers and business owners who thought they hashtag-trademarkscould get in on the Olympic buzz by using the popular Olympic hashtags on social media. They may have joined the conversation, but they probably also found a cease and desist letter or email for using trademarked hashtags on their business social media accounts. That’s right, hashtag trademarks are a thing.

2016 is not the first year that hashtags have been trademarked, but it seemed like the first major instance of a hashtag trademark owner cracking down. This piqued our curiosity, so we looked into the filing trends for terms starting with the pound sign (#). We found filings all the way back to 1963! No, they weren’t using hashtags in 1963, those filings were for terms like #1, and a few were for items like #$!? (cartoon cursing?).

The first online use of the pound sign was in the 1990s by IRC (Internet Relay Chat) users. It was used to categorize items into groups. The hashtag as we know it now was invented in 2007 by Chris Messina, who suggested that the symbol be used to organize groups on Twitter. The tweet looked like this:

?how do you feel about using # (pound) for groups. As in #barcamp [msg]??

The purpose was to organize and gather discussions going on at a technology event called Barcamp.

The hashtag has since been used by most of the social media platforms out there and is an important part of every business’ marketing strategy – hence the reason people started trademarking hashtags.

We wanted to see the trademark trends for hashtags so we limited our search to # followed by a letter (to remove all of the non-hashtag “#1” type things), and cut the timeline to 2007. Here’s what we found.

hashtag-trademarks

There have been 452 hashtag terms filed through Day 251 out of 366 days in 2016. If we take that out to the full year, we are on pace for 659 in 2016. Here are some hashtags you might recognize:

  • #Girlboss
  • #HowDoYouKFC
  • #BeYou
  • #RunThisTown
  • #SupportLocal
  • #WalmartElves
  • AT&T Presents #BeTheFan
  • #SrirachaGouda
  • Playboy #Generation
  • #LikeAGirl
  • #IceBucketChallenge (also #ALSIceBucketChallenge)
  • #ThrowbackThursday
  • #CokeCanPics
  • #SmileWithACoke
  • #LifeonMars
  • #RioReady
  • #LoveIsLove
  • #BlackLivesMatter
  • #PaylessShoeSource

It’s clear that hashtag trademarks are becoming more prevalent so watch what you hashtag and make sure your clients start trademarking their own branded hashtags.

When is it Just Not Worth the Trademark Fight?

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Well intentioned trademark enforcement efforts can sometimes cause unintended collateral damage.  Even a victorious trademark fight can be accompanied by a PR nightmare. In some cases, the PR problems can cost more than a legal battle. Brand defense is a noble effort, but not if the PR damage is too great.

Take Vail Resorts’ trademark application for the words ‘Park City’, an iconic ski community.  The application resulted in outrage by the town and a costly trademark fight. After a rally of angry community members and a lot of bad press, Vail Resorts ended up withdrawing their application.

trademark-fightIn addition to bad PR, there could be significantly more financial costs to the client when it comes to a big trademark fight. For instance, bad PR could require the hiring of a PR firm to squash and spin the press. It could also end up being a long and expensive legal battle.

The Washington Redskins case was not a case of enforcement gone overboard, but it is still a prime example of how tangled and expensive a protracted trademark fight can be.  The team has been in trademark litigation since 2013 when they were asked to change their name due to its disparaging reference to Native Americans. Three years later, they’ve appealed their way to the Supreme Court and are still fighting the battle.

The Redskins have plenty of resources to continue a trademark fight of this magnitude, but does your client? There’s a fair amount to consider when it comes to defending a mark.

Here are some things to consider and discuss before starting or continuing a trademark battle.

  1. Is your trademark strategy too broad?  Remember that unless there is a real probability of consumer confusion, trademark law will not ultimately support your demand.
  2. Are you trying to capitalize on a colloquial or local term in a way that will upset the community in which your business resides?
  3. Are you trying to squash a little guy who may have made a mistake or is unaware of how their mark could be confusing?
  4. Is there a less aggressive means for your request of the other party? For example, a less formal email or a phone call.  Keep in mind that cease and desist letters are very often posted online by the recipients, inviting and inciting criticism from far and wide.

While it’s of utmost importance to ensure that your client’s trademarks are protected, it’s also important to know the risks involved in pursing a legal battle. If there’s cause to send a cease and desist, you should always assume your letter will become public and could create some backlash. Careful consideration should be made about your next steps, and strategies in place to prevent or manage collateral damage.