The Trouble with Tags: Seeking Mark Protection for Corporate Branded Hashtags - More Trouble Than It's Worth?

By Salter, Kendall | Journal of Corporation Law, Spring 2018 | Go to article overview

The Trouble with Tags: Seeking Mark Protection for Corporate Branded Hashtags - More Trouble Than It's Worth?


Salter, Kendall, Journal of Corporation Law


I. INTRODUCTION: HASHTAGS AND MARKETING, A LOVE STORY OR A LIABILITY? II. BACKGROUND: CORPORATIONS HOP ON THE #BANDWAGON        A. Corporate Engagement with Hashtags        B. Overview of Trademark Law            1. Use in Commerce            2. Distinctiveness            3. Free Speech Tensions in Trademark Law        C. Can a Hashtag Be Trademarked?            1. Recent Scholarship            2. Hashtag Trademarks in the Courts III. ANALYSIS: PROSPERITY AND PITFALLS        A. Potential Corporate Benefits of Hashtags        B. Potential Corporate Drawbacks of Hashtags        C. Theory and Policy        D. Analyzing the Eksouzian Holding IV. RECOMMENDATION: MORE TROUBLE THAN IT IS WORTH        A. Resolving Doctrinal Tension Between Courts and the USPTO        B. The High Cost of Policing        C. The Constant Threat of Genericism        D. Policy Concerns V. CONCLUSION: THE WAIT-AND-SEE APPROACH 

I. INTRODUCTION: HASHTAGS AND MARKETING, A LOVE STORY OR A LIABILITY?

Hashtags play a central role in online, social media-based communication for hundreds of millions of users, both in the United States and around the globe. (1) Facebook alone boasts a monthly user count of over 1.5 billion. (2) Instagram hosts another approximately 400 million each month, with Twitter not far behind (at approximately 320 million). (3) These staggering numbers represent a still-to-be-tapped bonanza for corporations and advertisers, who are afforded constant and nearly instantaneous access to potential consumers through a simple, searchable device. (4)

Hashtags, composed of a term or terms, grouped without spacing and preceded by a pound symbol, are a form of metadata, "data that describes other data." (5) This tool allow social media users (6) to search tweets, Instagram photos, Facebook posts, and more through one-click navigation via a hashtag-turned-hyperlink. (7) Hashtags are a tool, a functional method by which users can organize their online social experience, interact with brands, curate their feeds, and examine breaking news and new cultural trends. (8) They are also a valuable form of expression, adaptable to everything from social commentary to literature. (9) This flexibility, combined with the device's omnipresence across social media, no doubt whets the appetites of many corporate executives, eager to turn fun and fancy into a financial windfall. Corporations reap many benefits from the proliferation of the hashtag. (10)

This Note explores recent scholarship on the trademarkability of hashtags and the unique challenges corporations face in seeking to enforce their exclusive rights in such marks. This Note analyzes whether seeking such protection is worth the trouble and investment in light of (1) a seeming tension between the courts and the U.S. Patent and Trademark Office (USPTO) over the validity of trademark protection for hashtags; (2) the potential hassle of enforcement; (3) the specter of genericism; and (4) concerns about limiting free speech.

It further examines alternative theories for benefits corporations may reap from investing in hashtag-based marketing, even in the absence of trademark protection. Recent scholarship has discussed the ability to trademark hashtags as a matter of policy. This Note explores whether or not, in recognition of the USPTO's willingness to grant such exclusive rights, it is worthwhile for corporations to seek trademarks for brand hashtags in light of the potential costs, hassles, and potential negative public perception.

II. BACKGROUND: CORPORATIONS HOP ON THE #BANDWAGON

Businesses can successfully take advantage of hashtags by using them in a way that reflects a "core brand message." (11) As corporations devote increased resources to maximizing the marketing potential of hashtags, they likewise look for the most effective way to generate positive "brand engagement. (12) On Twitter, a hashtag is a quick and easy way to generate discussion about advertisements, (13) and increase interaction between brands and potential consumers. …

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