In recent years many companies and groups have sought to protect hashtags as intellectual property. These groups have wanted protection for their hashtags so that their marks will not be harmed by over or improper use, and so that they alone have control over what their mark stands for. These are some of the key rationales Congress gave for enacting the Lanham Act (the Act that federal trademark protection stems from).
A hashtag is a tag for online posts that is usually a topic name proceeded by a #. The object of using these marks is so that people can self-identify their posts, which allows others to find the group of posts simply by clicking on one of the tags. This meta data also allows service providers like Twitter and Facebook to keep track and inform their users of what topics are being talked about the most, and topics that are most talked about at a particular time frame are considered to be “trending.”
Trademarks law was originally enacted as a form of consumer protection that ensured the source of origin for products sold in commerce. It protects all source identifiers like words or design marks, color combinations, packaging, sounds, and even smells. The traditional requirements for trademark law is that the mark must be used in commerce, and the mark must be distinct or possess acquired secondary meaning through extensive use in commerce. Over time, courts have recognized the benefits to trademark holders and the non-consuming public as a legitimate reason for having this sort of intellectual property protection.
Trademark law has evolved as a result of emerging technologies. One way that the court has extended trademark protection to these new platforms is by offering protection to domain names and web sites. Protection for domain names is rather limited and stems from people registering famous marks as their domain name with the intent of having the mark holder pay for the preferred domain name; this practice is called cyber-squatting. Typically, the action for cyber-squatting requires the squatter to have no legitimate reason for registering the domain name, which is like extorting money out of the true mark holder, or even just to deprive the true mark holder from using his/her preferred domain name.
Although domain names themselves are not protected by trademark law, the courts have recognized that the use of a domain name can add to a likelihood of confusion analysis for determining infringement, or intentional false advertisement. In assessing likelihood of confusion, courts look to the totality of the circumstances to determine what the consuming public would think of the potential infringer’s actions. Often times, many of these elements that add to a likelihood of confusion could not, or do not, themselves have trademark protection.
Similarly, the use of a trademarked name or slogan in a hashtag can mislead consumers. An example of misleading consumers with hashtags can be seen in Pub. Impact, LLC v. Boston Consulting Grp. and TWTB, Inc. v. Rampick. In both of these cases, the Defendant was a competing business that was maintaining a web presence that mislead consumers into thinking the businesses were the same. The issue with these examples, however, is that like domain names, the use of the hashtag was only one element in showing a likelihood of confusion. It was a tool that the Defendants were using to further mislead the consumers into believing that the page really belonged to the Plaintiff. This issue with online advertising should be addressed by the courts but should not be expanded into allowing people to claim an actual trademark in a hashtag. Any protection given to hashtags has the potential to silence critics and harm the modern lexicon.
Hashtags are a unique, functional tool for communicating and it could be argued that they shouldn’t be bogged down with ownership. Every time we allow a word or phrase to be trademarked, we limit its usefulness by allowing the owner to sue over improper use. Hashtags should not belong to anyone, and it should be left to society as a whole to determine their meaning.