Use of trademarks as hashtags on social media
The opportunity to label social media posts with hashtags are endless. But there is a tension between brandowners’ desire to get as many people as possible to see their posts and use their hashtag, and the traditional trademark laws. Trademark law surrounding social media is still full of gray areas, but this article can provide brandowners some guidance.
Since social media platforms are relatively new in the eyes of the law—with new applications being launched all the time—legal guidance surrounding social media is full of gray areas. The answer to the question, “which hashtags can I use?” is contextual in nature. For example, just seeing another brand’s #hashtag on your social media account might inadvertently convey to consumers an endorsement, affiliation, sponsorship, or collaboration with that brand. That may or may not have been your express intention. However, when other brands use your hashtag on their posts, their “unauthorized use” could actually be a good thing. For example, it could increase your visibility in the social media world, make your hashtag more visible, and attract more followers.
When using hashtags on social media, ask yourself the following questions to ensure you are not running afoul of trademark law:
- Why did you select a particular hashtag?
- Is the hashtag you selected a known brand name that is a registered trademark? If yes, then think hard about Question 1, and whether your use could be construed as unfair competition or creating consumer confusion.
- Are you using the hashtag to promote a product for commercial purposes? If yes, then definitely look closely at Question 2!
- If you are using the hashtag for a commercial purpose, is the product you are promoting in the same class of goods/services as the brand whose hashtag you want to use? If yes, then Question 2 calls again!
- Consider whether your use could create inadvertent confusion among consumers, and take steps, where possible, to avoid such confusion.
- Are you using a popular brand’s hashtag to drive traffic to your site? The trademark laws generally disfavor such uses because they protect brand owners from third parties seeking to get a “free ride” off their brand equity.
It is still difficult to draw clear boundaries of whether and when a particular hashtag can be used. However, users should not be afraid to use them while being mindful of the guidelines set-forth above. Another good rule of thumb is that hashtags are available to all users provided they do not violate the Trademark Usage Policies of the various social media sites. Do your due diligence, be practical and tread respectfully. Happy #hashtagging!
Do you have questions about trademark issues related to social media? If so, give Kyle Peterson a call at 612.252.1554 or email him at firstname.lastname@example.org.