Episode 138: The DANGERS of Brand Hashtags (And How To Avoid A #Lawsuit)

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Truth be told, social media hashtag strategies are becoming more complex by the day. The algorithms change on a dime and even seasoned business owners feel like they take one step forward and two steps back. Not to mention shadowbanning (where you can use one wrong hashtag that leaves you in the dark for an extended period of time) OR all the legal implications of using brand hashtags and potential copyright infringement.

It can be tempting to crawl into a metaphorical hole and never touch social media again, but as a business owner, it’s smart to have some sort of online presence. With all its ups and downs, social media can help you reach people who may not have found you otherwise and that is worth its weight in gold. In Episode 138 of The Legal Paige Podcast, I break down one of the main legal dangers on social media: Using brand hashtags! Knowledge is power and by being aware of the potential pitfalls, you can navigate social media with more confidence and ease.

This episode was inspired by a question we received in The Legal Paige Facebook Community regarding Minted’s terms and conditions for using their hashtags. Basically, if you use certain hashtags like #sharemyminted or #mintedartist with a photo online then Minted claims you have essentially agreed to let them do whatever they want with the photo ( including share, reproduce, create derivative works of art from your photo without any compensation). Press play for my take on this situation as well as more tips on using brand hashtags without causing a lawsuit.

Intellectual Property Rights + Hashtags

The first thing you should note is that a company may have intellectual property rights to its hashtags. Hashtags have become an integral part of selling products- especially on Facebook and Instagram- and courts are starting to address them in terms of intellectual property. Companies use hashtags during marketing campaigns and it reasonably follows that they want to monitor hashtag usage and prevent competitors from using it.

Can one company monopolize a hashtag? The answer is yes!

The United States Patent and Trademark Office gave some guidance regarding the protectability and registration of hashtags: “A mark comprising of or including the hash symbol (#) or the term ‘hashtag’ is registerable as a trademark of service only if it functions as an identifier of the source of the applicant’s goods or services.”

Hashtag trademarks that have been successfully registered as such in the United States include:

• #smilewithacoke and #cokecanpics (The Coca-Cola Company),

• #McDstories (McDonald's), and

• #makeitcount (Nike).

Some hashtags that have been denied registrability by the USPTO are #worldtravelor (for a travel site), or #friendsgiving (for charitable fundraising services). The distinction here is that the trademark was too broad. If you are going to trademark a brand hashtag it must identify your brand.

Although the USPTO has recognized the right to protect your brand's hashtags, courts have been a bit split on the issue. A federal court in California ruled that hashtags are merely descriptive devices, not trademarks in and of themselves but in an eastern Louisiana court, hashtags were recognized as being relevant to a trademark claim. Although technology moves fast, court decisions do not and we may not get a uniform decision on this issue for many years.

What Does Mean For Small Business Owners That Use Brand Hashtags?

Plain and simple: Brand Hashtags can be protected through trademark registration.

The good news is if you’re already using a brand hashtag that is making waves throughout social media you could be able to prevent competitors from stealing it through trademark registration.

The bad news is that if you are sharing hashtagged content on social media and use a competitor’s brand hashtag you could be met with a cease and desist letter. The important thing to note here is that you should research the heck out of a hashtag before using it for your brand.

More From This Episode

Tune into Episode 138 of The Legal Paige Podcast and learn more about:

• Brand hashtags,

• Whether brands can repurpose works of art that use their brand hashtags without consent,

• The three types of consent that companies use to get consent from their users,

• The importance of trademark registration, and

• My advice for navigating brand hashtags the legally legit way.

If you want more helpful business advice as you’ll hear on the podcast, be sure to join The Legal Paige Facebook Community where thousands of entrepreneurs just like you are getting real-time answers about running a professionally and legally legit business. Who knows, maybe we will even turn one of your questions into a whole podcast episode like this one.