The Legal Evolution of the Social Media Hashtags
Social Media Hashtags are becoming so popular that they have gained legal recognition as intellectual property.
As their value to businesses grows, they are also becoming the subject of lawsuits involving trademark infringement and false advertising.
Hashtags started on Twitter as a way to link posts on the site, but are now used all over social media. From popular expressions to television shows to new events to political candidates, there is virtually no limit to what word or phrase can be used as a hashtag. In 2014, the word even gained recognition in the Merriam-Webster Dictionary. The official definition is: “A word or phrase preceded by the symbol # that classifies or categorizes the accompanying text (such as a tweet).”
Registering Social Media Hashtags as Trademarks
In response to a flood of trademark registration applications including hashtags, the U.S. Patent and Trademark Office (USPTO) advised its trademark examiners in 2013 that a mark comprising or including the hash symbol (#) or the term HASHTAG can be registered as a trademark or service mark so long as it functions as an identifier of the source of the applicant’s goods or services. According to the USPTO, a hashtag is defined as “a form of metadata comprised of a word or phrase prefixed with the symbol ‘#.’”
As with any trademark, a mark including a hashtag cannot be merely descriptive or generic, but rather must be used to identify the brand’s goods or services. Examples of successfully registered marks include the Coca-Cola Company’s #Smilewithacoke and Mucinex’s #Blamemucas. In addition to deterring others from using similar marks, owners of registered trademarks are entitled to sue for damages in federal court.
False Advertising Claims Involving Hashtags
Deceptive use of a hashtag associated with another brand may also be grounds for a false advertising suit under the Lanham Act. The statute establishes a federal cause of action for false statements or representations that are made in commercial advertising or promotion, are likely to deceive consumers, and are likely to cause injury to the plaintiff.
Earlier this year, a Mississippi clothing company, Fraternity Collection, filed suit against its former clothing designer after she used the terms “#fratcollection” and “#fraternitycollection” in her social media accounts to promote her designs for a competitor. In response to a motion to dismiss, the court held that Fraternity Collection had stated a claim for Lanham Act false advertising. According to the court, “Hashtagging a competitor’s name or product in social media posts could, in certain circumstances, deceive consumers.”
As these suits demonstrate, social media hashtags are proving to be more than just a passing fad. If your company has successfully incorporated social media hashtags into your marketing campaigns, it may be time to think about protecting its intellectual property value.