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Saturday, November 29, 2014

Intellectual Property and the #Hashtag


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.

You might like a citation on my perspective, and the sensible reference would be to case law and a statute. Instead, I’ll point you to Section 102 of the United States Copyright Act, and the US Copyright Office’s simple, yet helpful explanation. It’s not really up for debate.

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

A trademark is a “word, phrase, symbol or design, or combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.” And hashtags fit in there pretty nicely- they’re a combination of a word and a symbol (#). So yes, trademark law may protect a hashtag.

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.

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