Trademarking Hashtags: savvy or selfish?

Tue 22 Nov 2016 - posted by Louisa Breakell

As more and more people become active on social media, it seems as though its labels have become verbs, nouns and adjectives for everyday life. When we think of a ‘tweet’ do we think of a bird noise or a Twitter post? Is a “feed” a seriously satisfying meal or the stories we see when we load our Facebook page? How many of us have actually spoken the words “hashtag sorry not sorry” and felt the sass bubble over? I suspect rather a few.


On the topic of hashtags, they have grown at such a pace in recent years and become such a fixture in our lives that Forbes named us ‘Generation Hashtag’. The rise of content marketing as a way to attract and engage target audiences has – in part – fuelled the use of hashtags as a way to categorise and focus conversations on social media.


User generated content by means of tagging, sharing and hashtags is now a firm fixture in most online marketing strategies, however their popularity is proving a challenge that most are just beginning to consider an issue.


Hashtags might well open up discussions to the public and allow them to respond, engage and amplify your message, but they also open the door to other brands merely jumping on the bandwagon and hijacking your campaign for a quick win. Enter hashtag trademarks – yes, hashtag trademarks.


There have only been 2,900 requests to trademark a hashtag in the list 5 years, with only 7 companies doing so in 2010, according to Thomson Reuters, however a whopping 1,400 of those were filed in 2015. Back in 2010, less than 50% of requests were granted, but changes to trademarking procedures in 2013 has meant that the success rate has risen sharply since then.


One of the most contentious examples of hashtag trademarking that springs to mind is the Rio Olympics in 2016, where it seemed that the right to use #Rio2016 went to the highest business bidders only.  The general public were able to tag to their heart’s content, but any businesses using it without being official sponsors of the sporting event were subjected to intimidating messages and the threat of legal action from USOC (US Olympics Committee).


Even wishing teams and athletes good luck got certain businesses into trouble, as well as brands who posted images with any logos at all in them. Many felt that the world of social media advertising had gone into overdrive when clothing brand Oiselle got in trouble after posting a photo of one of the runners they sponsor, due to a tiny set of Olympic rings printed on her runner number bib.


Social media is still one of the cheapest options for advertising, so there is no doubt that protecting the value of your brand’s content is almost as critical as how many followers and leads you gain from it. If you haven’t considered trademarking your hashtags, some challenging questions need to be asked: if the value of your content is linked to ownership, but you cannot own user generated content, how do you safeguard your brand from having its campaign hijacked? Is your trademark too generic that it is more liable to being replicated – wittingly or unwittingly? How will you handle cases where your hashtag is being poached?


If you plan to trademark your hashtags, another question becomes: how can you police their use, and do you have adequate resources to take action if they are ‘stolen’? How will you distinguish business use from personal use of the hashtag in a place where entrepreneurs and social media moguls are liable to jump in? At what point does an influencer amplifying your idea become a thief?


Another issue is the accidental use of trademarked hashtags. We can hardly blame the majority of businesses for assuming #Rio2016 was the most relevant hashtag to use to send their well wishes on the way, and for being shocked to find themselves on the receiving end of bullying emails. Attempting to trademark such a generic hashtag was, arguably, a losing battle from the off.


Another obstacle is actually finding out whether a hashtag is trademarked before you post it. Even businesses savvy enough to check before using one might struggle to find the relevant information – the trademark logo is not applied to trademarked hashtags, and no alert is displayed when you search the hashtag (we tested with #SayItWithPepsi trademarked by PepsiCo).


There’s no easy answer to how far you need to take matters to protect your marketing content, and as few hashtags stand the test of time you must ask yourself what return you expect to see from them during their relatively short shelf life.

 

If you’ve had experience with trademarked hashtags, let us know in the comments section!

 

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