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Sued Over A Hashtag? It Could Happen.

#SUED #CeaseandDesist #Let_Go_Of_My_Brand

What if brands could claim hashtags as intellectual property under trademark laws?

This is the question I asked myself this morning while digging though a muddled hashtag, keeping track of brand identities and listening to the audience.  I wondered what a company would be willing to pay to have exclusive rights to a hashtag. We already see promoted tweets and promoted trending topics; how much more would they pay for a unique hashtag?

Would companies actually invest in registering hashtags?

How much would a company be willing to pay to have a clear channel to speak to and listen to its consumers? The answer is: check the size of its marketing budget, the hours worked by its team and the hundreds of  products available for such a service.

A perfect example of this is Twubs. Twubs is a service that allows companies to register their brand hashtags, to reduce complications of an overused hashtag (and therefore losing its ability to be a trademark) and to “effectively ‘own’ their conversation, where appropriate.

What is the importance of a hashtag being recognized as a trademark?

The The United States Patent and Trademark Office defines a trademark as “any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.” [1]

Brands and individuals use a words and symbols to identify their brand on social networks— they use hashtags. These hashtags foster conversations and add valuable visibility and authenticity to brands. This unique mark, often altered or recreated for differing marketing campaigns, is one of the prime voices and channels of communication for the brand to speak and listen to its consumers.

Have people been sued over the use of a hashtag?

So far, there only been a few low-profile scuffles over the use of a hashtag. The most high-profile fight over  hashtag use happened as 2011’s big April Fool’s joke and PR Stunt, brought to you by the Webby Awards. But it likely won’t be long before companies push to have hashtags recognized as trademarks. And once a trademark, for the health of the brand, a company must relentlessly protect their intellectual property.

Brandjacking

This also brings up another question: in the future will we see ugly brand wars and brandjacking on our social networks? We’ve already seen the immense popularity of newsjacking—who is to say that a brand won’t jump on another brand’s high success and steal their away some of their visibility and authority?  Companies will want to protect their hashtags—aka trademarks—from another brand through legal outlets.

It is inevitable

If the Webby Awards’ PR stunt was any indication, legal battles over hashtag use will be happening sooner than later. We already see plenty of legal actions from charities (like Komen Foundation limiting the use of “for the cure”) to for-profit business (like Facebook’s suit over the use of “book”), and I highly doubt it will slow over the years.  So what does this mean for brands? Build your brand now around hashtags you want to trademark in the future.  What does this mean for the citizens of the internet? #Hashtags_Might_Not_Be_A_Freedom_Of_Speech.

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