Trademarking Hashtags: The Attempted Privatisation of Social Media

Fast Web Media

Recently, several organisations have begun seeking to legally protect hashtags used across the breadth of Twitter. Is this a demonstration that such businesses aren’t using Twitter in the way it was intended to be used – as a platform for conversational interactions – or is this a precursor of a backslide towards the traditional means of advertising wherein the brand is the only one with a voice?

The Situation

In a strange move, the US Olympic Committee (USOC) has sent a series of letters to unofficial sponsors who have been using the official Twitter hashtags “#TeamUSA” and “#Rio2016”. The letters fall short of any kind of cease-and-desist order, but still represent an odd strategy as the very cornerstone that Twitter exists on is different people, organisations and companies being able to share ideas and contribute to a conversation through the means of hashtag grouping.

So Can Hashtags Be Trademarked?

Hashtags can be trademarked as long as a company can prove that the intended phrase is closely linked to the product or service that is being provided in the same way that a trademark may be placed on any phrase sans-hashtag. Twitter itself is keen to take advantage of the potential capabilities of hashtags as it has recently launched a platform whereby users can unlock exclusive content by using a branded hashtag. However, as The Guardian reported recently, trademarking a hashtag can only prevent a fellow company from promoting a product of its own and also comes nowhere near limiting what the hashtag can be appropriated alongside.

Twitter’s own trademark policy states that:

One striking absentee from this policy is any reference to hashtags, and in fact the entire page on trademark policy – which has sparingly not been copied into this article – contains no specific reference to hashtags whatsoever. This clearly indicates that Twitter views hashtags as a medium for collating similar posts rather than a place for companies to use slogans or gimmicks.

If any organisations had genuinely broken a trademark agreement the USOC has in place, it’s fairly obvious that it would have entered genuine legal proceedings rather than looking to shout its way out of the situation.

When Can Trademarked Hashtags Be Used?

For example, a watch manufacturer whose client is an athlete competing at the Olympics is well within its rights to tweet “Good luck to @clientsname at #Rio2016!” as this contains no reference to its own product other than the fact that it comes from its account, but this certainly doesn’t cross the line into competing for business. The only breach would be a post with direct reference to a particular product such as a picture of the client wearing or using said product or a message like “Glad to see @clientsname will be rocking #Rio2016 in style”.

Are There Any Other Examples Of This?

Specsavers is another business who has also filed to trademark the phrases “should’ve” and “shouldve” in reference to its own long-running ad campaigns. The latter of these indicates that Specsavers would be looking to use the phrase as a hashtag as Twitter doesn’t support punctuation within hashtags. Whilst no-one can deny that the longer phrase “Should’ve Gone To Specsavers” has a clear link to the brand (most notably as it contains its own name), seeking to appropriate this one-word manifesto as its own appears ill-advised. A quick glance through the tweets using “#shouldve” shows that while there are a number of tweets related to Specsavers, there are many others serving unrelated topics and most importantly none from any company who could be perceived as a competitor. The Drum has reported that trademark lawyers don’t think that Specsavers will be able to trademark the phrase as it is too short and in isolation bears scarce resemblance to the actual tag line.

Conclusion

So what do these instances add up to? On the surface they represent a lack of understanding of what social media stands for and an unwillingness to harness its greatest quality – sharing content. Another way of looking at this is that underneath the perkiness that glosses the social media accounts of many organisations and companies across the world is a desire to regain control and return to the glory days of comment-free marketing and advertising.

Does your company or organisation use a signature hashtag? Have you ever considered getting it trademarked? Let us know over social media.

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