Brand Protection in New Media, the case of Hashtags

Trademarks make it possible to identify the business origin of products on the market and for many this simply means a logo or a name affixed to a product. However, the concept of trademarks is almost as old as human commerce (in ancient Greece vase manufacturers already marked their products) and that our current brand system is several centuries old, what we consider brand has also evolved. For example, for some time we have also talked about sound, 3D, and smell marks.

On the other hand, the concept of hashtag is nowadays very present in our lives. A concept that a few years ago was completely non-existent, today it is a fundamental part of the way in which people communicate.

The concept of hashtag is interesting compared to the normal use of a wordmark. It should not be the simple use of the symbol (#) as part of a trademark on a product. No, it should be assessed whether the use of the words actually used as a hashtag in a social network should be considered a trademark with all the rights and exclusivity that this implies.

A recent case is interesting: The Star Wars film saga (now owned by Disney), has a large following who are quite active in their admiration for the series. May 4 is a very special day for her followers because of the word game, May the 4th, with the famous line “May the force be with you”.

This year, Disney invited its fans to trend the hashtag # Maythe4th, but the company stated that the use of the hashtag would authorize the company to use the posts for promotional uses without having to pay any type compensation for their authors. In the end, there was a stir and the company had to go back and explain the scope of this statement, but the negative reactions were considerable.

Being hashtags a new way in which people communicate. Could they be considered or protected as trademarks?

The subject is not new and for 10 years now there have been brands that include the prefix sign #, but in any case, it is interesting to conclude whether this is simply a regular wordmark that includes this # symbol.

In the United States, there are many hashtags that today are registered as trademarks, but when analyzing the cases in detail, they are really trademarks that, despite having the '#' sign, protect products or services in a traditional way. For example, KFC, the fast-food chain registered #HOWDOYOUKFC, to cover restaurant services; #JUGLIFE is a brand for reusable water bottles or #THESELFIE is a trademark that identifies photographic accessories.

But how are these brands actually used? Traditionally, one should say that if the #HOWDOYOUKFC trademark protects restaurant services, it should be on the front of a restaurant. Or if the #JUGLIFE trademark protects reusable bottles, it should be used on actual bottles, not as a promotional tool in social media. Could we then argue that there is effective use of the trademark for the products and services that are protected in these cases?

On the other hand, the essence and nature of the hashtag is that it be freely used by anyone to become a trend. Could (or should) the trademark owner limit its use by users? It is clear that if the use is precisely like # in a social network, limiting that use could be difficult to achieve and in principle not convenient. This conclusion would obviously change if the brand is actually used in a product or service to identify it.