Businesses of all sizes are now taking social media seriously. On the one hand, the modern social media platforms are offering companies an unprecedented opportunity to engage with their customers and to build brand loyalty. On the other hand, they are also raising all sorts of challenging questions about the ownership of content and intellectual property in general.
Take the artist Richard Prince, who used other people’s Instagram images, without their permission, to create a series of portraits, which he then sold. Prince did add his own input to these portraits, in the form of comments and emojis, which, he argues, is enough to make the works original and therefore nullify the issue of copyright. Some of the people whose images he used, however, feel very differently about the matter. It’s noticeable, that Prince used pictures from private individuals rather than from companies, which could feasibly have deeper pockets and (in-house) legal expertise to protect their content. After all, if you have gone to the effort and expense of creating compelling, original content, why would you sit back and watch someone else appropriate it, if you could reasonably stop them from doing so?
At what point, however, does content become original enough to merit its own protection? Does a 140-character Tweet really have as much value as a long-form blog post? Is it worth registering a hashtag as a trademark? The U.S. has already moved in this direction with Coca-Cola applying for protection for two of the hashtags it uses, but there are significant differences between trademark law in the U.S. and trademark law in Europe and the UK in particular. So the first question we need to ask is whether or not it is actually possible to register a hashtag as a trademark.
The answer is, possibly, it depends. Trademarks have to be “of […] distinctive character”. If a hashtag is simply made up of ordinary words then it could be a challenge to demonstrate its distinctiveness. For example one of the most successful hashtags of recent times was Domino’s “#letsdolunch”, which gained massive recognition during the relevant promotion, but could hardly be classed as original and/or distinctive.
One way to get around the issue of distinctiveness would be to incorporate an existing trademark, as is the case with Coca-Cola in the U.S. which has adopted “#cokecanpics” and “#smilewithacoke” but this then raises the question of the value of going through the trademarking process in the first place. In other words, what additional protection is gained by protecting the hashtag? In some cases, there could be a financial argument for protecting it as a trademark. Sporting bodies, for example, may want to prevent non-sponsors from piggybacking on the immense publicity their events generate, so, for example, protecting #olympics could make sense. It’s also worth remembering that companies are increasingly using hashtags outside of social media, including on physical products, which could support registration.
It is, however, entirely possible that the key issue with attempting to protect hashtags is that the protection may either defeat the purpose of the exercise or become a victim of its own success. The whole point of hashtags is that it makes it easy for internet users to find content related to a particular topic and the whole point of creating great content for social media is to have it liked and shared. In short, if the effect of your trademark is to make people feel wary about sharing your content then you’ve just blown a hole in your marketing strategy. If, however, your hashtag does become highly popular, or even go viral, then there is a strong possibility it will lose its distinctiveness and therefore cease to be considered a valid trademark.
