Are you #BreakingTheLaw by using Hashtags?


By Kerry Gorgone, {grow} Contributing Columnist

The “pound sign” (#) has seen quite a resurgence in popularity the past few years, as people repurpose it as the omnipresent hashtag on social networks like Twitter and Facebook.

Marketers and brands jumped on the hashtag train early (with some hilarious missteps), using hashtags to run giveaways, facilitate Twitter chats or just get cheeky with brand audiences.

If you’re sharing content on behalf of a brand and hashtagging it with a competitor’s trademark, you might be unwittingly breaking the law.

A trademark or service mark helps your audience identify goods or services from a specific source. The law protects businesses from unfair competition by making it illegal for someone else in your industry to use your protected mark on their competing goods.

Trademark protection covers only the specific category of goods or services you deal in. For example, Delta Airlines owns the trademark “Delta” for air travel, but Delta faucets owns the trademark for bathroom fixtures. No legal issues: they’re in different industries.

Putting a hashtag symbol in front of someone else’s trademark is fine if you’re a private citizen having a conversation online, but it could be risky for marketers to hashtag a competitor’s trademark.

In a recent trademark case, Eksouzian v. Albanese, the court had to decide whether one of the parties had violated a settlement agreement by using the hashtag #cloudpen (not a brand name: just a term commonly used to describe compact vaporizers).

In Eksouzian, the court found that using a descriptive hashtag (like #cloudpen) did not violate trademark law or the settlement agreement in that case, because the hashtagged term was not itself a trademark.

Therein lies an important distinction for marketers: using the hashtag #cloudpen is fine, but avoid using #vapemail if you’re tweeting on behalf of a competing electronic cigarette brand, because “#vapemail” is a trademark.

Tips to #HashtagReponsibly:

  1. Avoid using trademarks as hashtags in marketing posts (unless you own the trademarks). For example, don’t use #CocaCola if you’re tweeting from Pepsi’s official account and promoting Pepsi.
  2. Don’t hijack another brand’s hashtag during an event or Twitter chat. It might not be illegal, depending on the circumstances, but it’s bad manners regardless.
  3. Don’t use irrelevant hashtags. If you tag your marketing post #DIY when the content you’re posting has nothing to do with crafting or “do it yourself” projects, people will be annoyed. Typically not the reaction you’re going for when you use social media for marketing.
  4. Don’t hashtag your Twitter fights. Ideally, don’t engage trolls at all, but if you feel the need to have a heated discussion about your brand online, avoid using hashtags relating to your brand. It’s like posting road signs to your street brawl!

Of course, in your personal life, you can hashtag all you like. I use long hashtags to editorialize or have a bit of fun. #YouKnowThatsRight.

Just exercise caution when hashtagging a tweet or Facebook post made on behalf of a client or employer.

#BetterSafeThanSorry. #AmIRight?

Kerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also Instructional Design Manager, Enterprise Training, at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast. Find Kerry on Google+ and Twitter.

Illustration courtest Flickr CC and Alan Levine.

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  • This is interesting- but don’t most brands want their hashtag to be mentioned? If their brand is so synonymous with the hashtag or term anyway that it would hold up in a court of law, then I would imagine that the brand would actually see value in having more mentions versus less to help create more word of mouth and sharing and trending and all that jazz. if Burger King tweeted a picture of their burger and had the hashtag #ImLovinIt not only would it make most consumers think of McDonald’s, but if you clicked on the hashtag you would see mostly McDonald’s content.

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  • Brands aren’t trying to come off as heavy-handed: they’re legally obligated to police their trademarks or they lose legal protection. If they’re part of a larger conversation happening online, that’s one thing, but if their brand hashtag is being invoked to promote a competing brand of chocolate, that might confuse consumers, thereby diluting the trademark. Brands have no choice but to act in that instance.

  • Sheila

    It is my understanding that until we actually create a law about hashtags, there can be no violation. That’s why there was no sales tax required for online purchases to begin with, some states still haven’t created Internet sales tax laws even to this day. It’s crazy, but if there’s no law, there can be no tax. If there are no #hashtag laws on the books, there can be no violation.

  • Good point. Also, in Kerry’s Eksouzian v. Albanese example, she suggests that because the hashtagged term was not itself a trademark, there was no trademark violation. In fact, with the dismissal, nothing came of that case to suggest that, had the hashtag been a trademarked term, a simple social share that contained the hashtag would constitute brand impersonation. No, as per the first successful case of a hashtag being trademarked, one would need to prove intent in “confusing the public as to the source of a product or service that’s being used in commerce. (Search INTA for details.)
    Further, I know of not one case in which a plaintiff won a judgement based solely on social media post(s) that contained a trademarked term.
    There are, however, no end to people who feel encroached up when what they deem to be “their” hashtag has been used by another. Please Google search ‘olympics hashtag fiasco’ to find the Guardian article in which Olivia Solon reminds us that the United States Olympic Committee should have known this: no one owns a hashtag.

  • You are absolutely right Kerry. Even I was doing the same mistake while posting content of various Social media channels.

    Thanks for updating great information. I don’t know about others but it is such a great post for me. Thanks once again.

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