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Proliferation of social media continues to stretch the
boundaries of the law and its definitions. It prompts us to apply the proven
legal concepts to new technological and social phenomena with no clear and
A good example is a question of whether Twitter hashtags are anybody's
intellectual property. If yes, then can a non-descriptive hashtag be used as a
trademark? Does it mean that we need to expand our trademark searches to
include Twitter hashtags?
First, let's look at the definition of a hashtag. A hashtag is a word preceded
by a "#" symbol that was first proposed by Chris Messina to tag topics of
interest. Now, hashtags are mostly used to identify discussion forums. If a
hashtag becomes popular, it will appear in the "Trends" area of the user's
homepage. Hashtags are used by users to find certain discussion topics, follow
these discussions and connect with other users with similar interests.
As far as I know, it is not possible to purchase a hashtag, but one can
purchase a hashtag search result through Twitter's Promoted Tweets product.
Hastags are also frequently used to advertise and promote products, services,
events and campaigns. One such example is #OccupyWallStreet. It is also quite
popular to use the corporate brand name or trademark as a hashtag to comment on
or promote the brand. At times, however, such social campaigns can get away
from the company's original intended use. For example, McDonalds had to pull its hashtag #McDstories
only two hours after introducing it, as people starting sharing quite different
mcdstories from the ones originally intended by the company. A similar
story can be told about Wendy's #Here TheBeef hashtag.
Although the widespread use of descriptive hashtags as trademarks is unlikely,
some companies have started to trademark their hashtags. Trademark law divides
trademarks into 45 classes, and the same name or logo can be trademarked by
different persons in different classes. It is still unclear, however, how will
this use and ability to trademark the same name or a logo but in different
classes apply to trademarked hashtags. One would need to register hashtag
applications in a particular class of products or services rather than in the
class for online forums and communications.
There is also a growing practice of using corporate names as hashtags. The
question then becomes: can the corporate name hashtag be used by other Twitter
users or does the right to its use belong solely to the company? The answer can
be found in Twitter's Trademark Policy: "Using a company or business name, logo,
or other trademark-protected materials in a manner that may mislead or confuse
others with regard to its brand or business affiliation may be considered a
trademark policy violation." So, Twitter users should be careful about using
other companies' names as hashtags to promote their own brands or to suggest
affiliation, as this may violate Twitter's policy.
In conclusion, it is still difficult to draw clear boundaries of whether and
when a particular hashtag can be used, but one thing is clear: hashtags are available
to all Twitter users to use so long as the use does not violate the Twitter
Read more commentary from Arina Shulga on the
legal aspects of operating new and growing businesses at Business Law Post.
This article is not
a legal advice, and was written for general informational purposes only.
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