**THE INFORMATION IN THIS ARTICLE IS NOT LEGAL ADVICE AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. IT IS INFORMATION ONLY.**
Hashtags are social media’s soup du jour.
We’ve all seen them. Most of us have even
used them. And people like Justin Timberlake and Jimmy Fallon are already over them. But it’s no surprise that even in the
midst of the hashtag revolution, most people simply have no clue about the
scope and extent of intellectual property rights in hashtags. Granted, I’m
certain many of us don’t even care. But for the ones that do, this is for you.
Copyright
Law Doesn’t Protect Hashtags
Let’s get this out of the way right now.
Copyright law does not protect hashtags. There, I said it. You might not like
to hear it, but it’s true. Hashtags lack sufficient authorship to warrant
copyright protection. That doesn’t mean your hashtag isn’t witty, or that
you’re not the first person to ever use that hashtag. To the contrary, it means
there simply isn’t enough original “expression” extending beyond an idea. And
in the copyright world, ideas are not protectable.
So now that I’ve disabused you of the
notion that copyright can protect a
hashtag, let’s get to the good stuff. Let’s talk about trademarks.
Trademark
Law May Protect Hashtags
But it’s not that simple. Nothing ever
is.
First, to qualify as a trademark, your
word/symbol must “identify and distinguish” the source of goods as between
parties. What happens if your hashtag doesn’t identify a source of goods? What
if there are no goods associated with your word/symbol? What if you’re in the
service business? There are a lot of questions wrapped up in a pretty
straightforward sentence.
For our purposes here, “trademark” will
include a “service mark,” which is the designation for marks associated with
services (instead of goods). And here’s another helpful note: for ease of
understanding, I’m sticking with the atmosphere around federally registered
trademarks, and not state or common law
trademarks, or other unregistered words, phrases, symbols or designs, or
combinations thereof, even if they might be treated as trademarks under the Lanham
Act or other applicable
law.
A
Trademark Is Only A Trademark In Context
Now back to the first hurdle- what if
there are no goods or services
associated with my hashtag? Guess what: it’s not a trademark. #sunnydays,
#sweetdreams, and #bigocean might all
be trademarks, but then again, they might not. If I’m not using those hashtags
to identify and distinguish between the source of a good or service, I’m not
using a trademark. So when I post an image on Instagram of the sun and use the
hashtag, #sunnydays, I’m not really using a trademark. Or, if I Tweet about the
story I just read to my son at bedtime and use the hashtag, #sweetdreams, I’m
not using a trademark either. Sure, #sunnydays and #sweetdreams might be
trademarks, in another context, but they are not trademarks in the context I
just described.
A
Trademark Is Associated With “Trade”
Which brings me to my second point. Do I
have to be in business to “trademark” a hashtag? Arguably, yes. It’s obvious
that if I manufacture and sell t-shirts under the brand, #sunnydays, I’m
identifying and distinguishing my company from others vis-à-vis my use of the
trademark. My use is “in commerce,” to use trademark terminology. But what if I
don’t have a business, and I’m just selling junk at a garage sale and I Tweet
about it using the hashtag, #junk4dayz? I suppose there’s a crafty lawyer out
there willing to seek protection for the trademark in that context, but I’m
guessing you’re smart enough to see the issue. Let’s just be conservative and
understand you probably need to be in “business” in order to establish
trademark rights for the hashtag you’re hoping to protect using trademark law.
That doesn’t mean you need to be successful or have a corporation. It just
means you need to consider your activities as being in commerce.
And now we’ve established a couple of
ground rules: 1) the hashtag should identify and distinguish your goods or
services; and 2) the hashtag should be associated with a business or trade.
What else do we need to know?
Truth
Versus Trademark
“I went for a 22 mile run tonight. #nike”
I mentioned #nike because I was wearing a
pair when I ran. Trademark protection doesn’t prevent people from speaking the
truth about using the goods or services of a trademark owner. #apple, #addidas,
and #sony. I’m looking at products with those brands (non-hashtag versions)
right now. So if I post, “Feet up, kicking back, watching Breaking Bad on my
#sony,” I’m not going to lose a trademark infringement lawsuit over that. It’s
permitted.
But if I am a computer manufacturer using
the brand, “Apple” on my products, chances are, I’m going to lose a trademark
infringement lawsuit. Likewise, if I’m that same manufacturer Tweeting about my
new tablet device, and I use #apple, after my Tweet, there’s a good chance I’m
going to be in some hot water. It’s not truth, because I’m not actually Apple.
Using
Theirs Versus Protecting Yours
Let’s get down to the nitty gritty. Sure,
you’re interested in whether you can use an #apple or #google hashtag, but what
you really want to know is if you can keep everyone else from using your
#insertwittywordshere hashtag. That’s the real question. And here’s a real
answer.
It depends.
Analysis of trademark protection for a
hashtag is really no different than for any other type of mark. But that’s not
the real issue. The real issue is that most hashtags are being used to describe something- a mood, a good, an
event, a person, a characteristic, an emotion, etc., etc., etc. You think you’re the first person to use a
particular hashtag, so you believe you’ve somehow established ownership over
that hashtag. Instead, you need to assess the circumstances and see if your
hashtag even qualifies as a trademark. Does it identify and distinguish your
goods/services from another’s goods/services? If so, it may be a trademark and subject to protection. If not, it’s probably
not being used as a trademark and is more akin to public domain and/or
protected free speech: #rainingtonight, #itschillyoutside, “I drove my #BMW
today,” “I’m wearing #Levi’s right now.”
What
About the #
I honestly think this is where all the
confusion lives. From a trademark law perspective, #Nike is really no different
than Nike. Same with #Google and Google. Or, #Apple and Apple. Why? Because the
law looks at the likelihood of confusion, not whether there’s an exact
replication of the registered mark.
It’s really the same argument that
happens with changes in spelling (i.e., Nike v. Nyke, etc.). Changing a letter
or adding a symbol doesn’t change the conversation. If you thought we were
talking about Apple (the brand) before, you’re not necessarily going to think
we’ve changed topics if it’s spelled, Apl, or if it’s a hashtag, #Apple.
And this is really the point.
Can you protect your hashtag use with
trademark law? Sure…if you have a trademark to begin with. But the mere fact
that it’s a hashtag doesn’t automatically push you one direction or the other.
The analysis of whether a hashtag is protected by trademark law is the same
analysis for a non-hashtag mark. Are you using a symbol and word to identify
and distinguish your goods (or services) from those of another? If so, we have
something to discuss. If not, you’re probably out of luck.
Closing
Thoughts
I submit to you that the hashtag
environment is less suitable to trademark discourse simply because the context
is often more about descriptions (e.g., I love my #TagHeuer, while listening
through my #SkullCandy headphones, etc.), and less about identifying and
distinguishing sources- at least with respect to your purpose in using the
hashtag on your average social media post. But if you think you’re using
something protectable, then by all means ask a qualified expert if you’re
correct.
Here’s the other thing: This is a
complicated area and I’ve given you a tiny little snapshot. Books could be
written on the subject, so don’t waste your time with, “yeah, but what about…,
what about…., what about…?” There are many, many more questions to answer
before getting this all straight. Think of this is a primer on the subject.
©
2014 Brock Shinen, Esq. All Rights Reserved. Unauthorized Use Prohibited By
Law.
Written by Brock Shinen, Esq.
Please send all queries to:
info@shinenlaw.com
THE INFORMATION IN THIS ARTICLE IS NOT
LEGAL ADVICE AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. IT IS INFORMATION
ONLY.
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