Hashtags: No matter how hard you might try, they just won’t go away. And there’s undeniable value in using hashtags to draw eyeballs to a social media post. Companies of all sizes and descriptions are leveraging hashtags to get their message out there. Which leads to today’s trademark question: can you use another company’s trademark as a hashtag?
The Basics
As a refresher, a trademark is anything that identifies the source of goods or services. In the context of hashtags, we’re talking about brand names, product names, company names, and slogans. #nike #justdoit #yougettheidea.
It’s important to understand that a trademark is a trademark whether or not the # symbol appears in front of it. Coca-Cola is no less a trademark if you express it as #cocacola. This means that companies don’t have to register the hashtag versions of their trademarks in order to be legally protected.
Nonetheless, some companies, including Coca-Cola itself, have filed trademark applications for marks that ere expressed as hashtags – but that’s presumably because they are going to use that exact form as the core brand element. For example, Coca-Cola applied to register #REDCAN as a trademark, so you can expect them to use #REDCAN, not just “Red Can,” in their marketing efforts around that brand.
OK, So Can You Use Another Company’s Brand as a Hashtag in Social Media Posts?
To answer this question, we’re going to have to apply the same analysis as we would with any other trademark issue. Ask yourself these questions – or, even better, go to your lawyer and ask her these questions:
- Is it likely that consumers who see this post will believe there is some connection between your products and theirs?
- Could this post be read to be making a false or disparaging statement about the other company?
Question #1 is the good old “likelihood of confusion” test that comes up in just about every trademark matter. When you’re asking yourself this question, try to look at it from the other side. Don’t assume “my customers are very smart and savvy, there’s no likelihood that they’d be confused.” That’s a good way to lead yourself into a trademark dispute.
If your products are similar to those of the company you’re mentioning, you’re more likely to get in trouble. A San Diego burger joint isn’t likely to get in trouble for tweeting #GoPadres. But Goodyear Tires using Michelin Tires’ brand name in a hashtag might lead to problems.
Question #2 relates to false advertising law. Commercial speech is protected by the First Amendment, but only to a point. The rule is simple: do not make false, misleading, or disparaging remarks in your marketing or advertising copy. It’s OK to say #OurPizzaIsTheBest – don’t say #DominosWillGiveYouFoodPoisoning.
What Does the Law Have to Say About Hashtag Trademark Disputes?
So far, not much. It’s extremely rare for companies’ hashtag disputes to make it to trial. (If you can find cases on this point, please let me know.)
A few years ago, Taco John’s, which owns a Federal trademark registration for TACO TUESDAY (who knew?), sent a cease and desist letter to another Mexican restaurant after they’d used the hashtag #tacotuesday. It ended up being a PR nightmare for Taco John’s, and they didn’t pursuing any legal action.
Read the Fine Print
Another factor to consider is the Terms of Use for the social media platform you’re using. For example, Twitter’s trademark policies can be found here. It reads, right at the top:
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, if you value your company’s Twitter account, don’t break the rules.
The Bottom Line
If you’re going to use another company’s brand name in a hashtag, don’t abuse the privilege. A one-time, non-disparaging use that doesn’t suggest sponsorship or affiliation is probably not going to get you into trouble. But if you’re using your competitor’s hashtag left and right to draw attention to your marketing, you might find yourself the recipient of a cease and desist letter.
Remember: Think Before You Tweet
