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Are #hashtags part of your trademark-strategy?

08. december 2016

A lot of trademarks are being filed with a hashtag in front, #ChasHude. What are the advantages and the disadvantages of this strategy? And what benefits your brand?

When the Internet arose to commercial prominence, a flood of .com-trademarks were filed. Quickly, the authorities and courts ruled that the adding of a top-level domain did not add significance to a trademark.

Similarly, a lot of trademarks are now being filed with a hashtag in front, #ChasHude.

Users of services like Twitter®, Instagram® and Facebook® are familiar with hashtags – the #-symbol followed by one or more words without spaces. On Twitter and other social networks, it serves as a way of tagging content. Hashtags have begun to interest owners of brands and intellectual property.

For instance, during the Summer Olympics in Rio, the United States Olympic Committee sent warning letters to sponsor companies warning them not to misappropriate intellectual property, and they specifically mentioned hashtags as being banned. Olympic committees in Germany and United Kingdom also issued guidelines that you could not use #RIO2016. Was that ok?

Back to basics: What are trademarks?
There are many variations on the definition of trademarks. Generally, a trademark is any recognisable insignia, phrase, symbol or similar that denotes a specific product or service or the owner of a product or service, that is used in the course trade, and that can differentiate it from all other similar products.

Where does that leave hashtags? For trademark owners, the situation is similar to the one with the top-level domains. It does not add further distinction to a trademark. Unless your business or your products are being marketed with added hashtags, such a registration is not necessary. But as a trademark, you can register marks with a hashtag. It may be that at some point, the authorities will take the view that it is crowding the register.

Hashtags help spread the message
Hashtags are useful for companies in spreading the reach of their advertising campaigns or in increasing awareness about their products and services. Inherently, hashtags are meant to be used by as many people as possible to facilitate online conversations. Given the exclusive nature and right of trademarks, hashtags can present a challenge for trademark owners in policing use of their trademarks.

For example, McDonalds® used #McDstories to encourage Twitter users to share positive McDonalds experiences. Within no time, the hashtag began trending with negative stories of McDonald’s establishments. This sort of “bash tagging” creates a general risk of brand dilution and badwill.

The essence is that hashtagging your products or trademarks is tempting and a very effective way of reaching out to your customer base. However, as with all social media, a trademark owner needs to take time to manage it properly. At Chas. Hude, we help clients develop and maintain a policy for using their trademarks on social media and the brand exposure they may get. More and companies recognise the importance of this area.

Part of a wider trademark policy
As a brand owner, you need to be aware that a registered trademark is not necessarily the “golden bullet” to tackle undesirable hashtags. Certain behaviour cannot be prevented, such as comparative advertising, dissatisfied costumers etc.

Brand owners with registered trademarks are in the best position. Unless a hashtag is likely to become core to the business and have longevity, there is no need to obtain a separate registration for the hashtag. The businesses should be able to rely on their trademark portfolio for protection. This will save time and money.

Careful consideration should also be given to registering hashtags alone instead of obtaining wider brand protection. In any event, many hashtags may be unsuitable for protection as registered trademarks.

The decision on these issues should be made, not seen as isolated questions, but as part of a wide brand strategy. It is not a one-size-fits-all approach. Much will depend on the popularity of the brand, the direction in which the brand is supposed to grow, and the financial strength of the brand owner.

As trusted trademark and IP-consultants, Chas. Hude have years of experience in devising and formulating strategies to provide proper and consistent protection for the image and goodwill of a brand.