The hashtag has evolved from a digital water cooler for like-minded Twitter users to a rallying call for Millennials and, now, a marketing tool that brands are increasingly turning to the courts to protect.
According to a recent Thomson Reuters report, “#CanWeTrademarkIt?,” the U.S. Patent and Trademark Office received 1,398 trademark applications for hashtagged terms last year, up from just seven in 2010. In the past five years, 2,898 applications have been filed globally.
The U.S. allows companies to register a hashtag if it functions as an identifier of the source of the applicant’s goods or services. Not every application is approved and many are abandoned, but Rob Davey, senior director of global services at Thomson CompuMark and author of the study, said that may be starting to change.
Davey said clothing, footwear and headgear are the most common classification of good and services with trademarked hashtags, with more than 800 so far. Examples include Madewell’s #everydaymadewell, Hudson’s #letyourselfgo and Skechers’ #gomeb.
“By doing this, they have legal recourse against uncompetitive use of those trademarks by other parties using them for commercial gain,” Davey said. He said there is no intention to prevent fans and customers from using the hashtags on sites like Facebook, Twitter and Instagram.
“The companies registering them are very happy for customers to use them,” Davey said, “but they would like to stop their competitors from using the same traffic for their commercial gain.”
For example, he said, PepsiCo wants customers to use #sayitwithpepsi, but if Coca-Cola were to use the hashtag to direct the social conversation to their own product, Pepsi could instruct their lawyers to use their trademark rights to stop them. But registering a trademark in a country does not automatically stop usage, Davey said.
Brands are clearly looking to protect what they see as increasingly valuable digital turf.
Joyce Lee, head of design at Madewell, said #everdaymadewell rolled out with a campaign in spring 2015.
“The hashtag at the core of the campaign was conceived with that same spirit, as a unifying thread, enabling and encouraging an ongoing conversation between Madewell and our customer,” she said. “We share posts from our Madewell social media channels encompassing the spirit of #everydaymadewell and asked our customers to show us how they wear, style and integrate Madewell into their daily lives.
“With the success of #everydaymadewell — 47,000 posts on Instagram to date — we’ve taken this a step further and started to integrate the content, showcasing real people who wear Madewell, throughout our Web site and stores,” she said. “The hashtag is a crucial part of the process because we find the images to feature by searching #everydaymadewell.”
Chris Messina, a technologist and designer who conceived of the hashtag for social media in 2007, said the effort to trademark hashtags is misguided. “The real question is, ‘What is the effect of trademarking a hashtag?,’” he said. “What will enforcement look like? Will these companies be sending out millions of cease-and-desist letters?”
Messina said he finds the practice of trademarking a hashtag “offensive and baffling.”
“For my part, and for the interests that motivated me to ‘give away’ the hashtag in 2007, trademarks don’t belong on hashtags,” he said. “Hashtags are a kind of conversational commons, and should be owned by no one but the crowd.”
Douglas Hand, an attorney at Hand Baldachin & Amburgey who specializes in fashion, said the notion of the trademarked hashtag could be challenged down the line.
“Ultimately, the courts have the final say on whether hashtags can be enforceable trademarks, and the [precedent] suggests they might not be,” he said.
Thomson Reuters’ Davey said brands aren’t likely to trademark every hashtag they use, due to the cost of registering, the time it takes and the global reach of social media.
And what about a negative hashtag — i.e., this generation’s version of “[yourname]sucks.com?”
Fashion Law Institute founder Susan Scafidi said it’s not likely that negative hashtags will be protected. “Brands not only run into a fair use problem, but also the requirement under U.S. law that to register a trademark, you have to use it in commerce. Unless a brand plans to use a negative hashtag, then it can’t register the negative hashtag as a trademark.”