#HASHTAG: OMG!

With the unstoppable rise of social media in the modern world many organisations have started to question the legal status of “hashtags” (commonly used on the popular social media site Twitter) as a form of intellectual property.

Historically, hashtags have been used on social media sites in order to prompt or stimulate a line of conversation about a particular topic which, more often than not, is pertinent at the time. Hashtags can be started by anyone and then “re-used” by any third party and are generally viewed as an aspect of social media that represents freedom of speech.

However, in recognition of the sheer power of social media (and tools such as the #Hashtag) in the marketing sphere, there has been a tendency in recent times for the #Hashtag to be used in a more formal sense as organisations start to use corporate trade marks within a hashtag to comment on aspects of a particular brand or even register a hashtags itself as a trade mark (such as Nike’s #makeitcount which is the subject of a recently filed Community trade mark application).

This commercial use goes way beyond the historic use of a hashtag as a communication tool and brings with it its own legal issues which have not been fully considered by the courts. By way of example, an organisation who has invested in the promotion and registration of a hashtag as a trade mark is likely to be prepared to enforce its rights against unauthorised third-party use of the hashtag as a trade mark and, depending on the value of the hashtag, may attempt to prevent offending or misleading use of the hashtag.

There do not appear to have been any UK or EU cases regarding trade mark infringement in the context of use of a hashtag. Indeed, the closest that the issue appears to have come to consideration was in the Californian case of La Russa v Twitter, Inc (CGC-09-488101 (state); 3:09-cv-02503-EMC (federal)). In this case, the manager of the St Louis Cardinals, Anthony La Russa, sued Twitter after an unknown Twitter user created an account and pretended to post updates as La Russa. La Russa claimed that the fake Twitter page constituted trade mark infringement, amongst other things. The fake Twitter page was removed immediately after the proceedings were filed and the matter ultimately settled and voluntarily dismissed without a determination on the issue.

Although Twitter’s terms and conditions do not specifically deal with trade marks used within hashtags, certain types of hashtag use may be a violation of the terms when used on Twitter. Twitter’s trade-mark policy prevents use of “a company or business name, logo, or other trade mark protected materials in a manner that may mislead or confuse others with regard to its brand or business affiliation”. The unauthorised use of a third party hashtag that is misleading or confusing (for example, a hashtag originating from a shoe company that wrongly suggests that its products are endorsed by an athlete) may violate the policy.

It is unclear whether UK courts would perceive the use of a hashtag alone as trade mark use in the relevant sense: it is more likely that Twitter would be regarded as a forum for communication rather than as a marketing or commercial tool. However, the position may be different if a sign is used as both a hashtag and in a more traditional trade mark sense, for example, as part of a larger marketing platform (such as Nike’s use of #makeitcount).

For further information contact Martin McKinnell at m.mckinnell@endeavour.law

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