Hashtags have become something of a fad in trademark circles as recent research has illustrated. That is no surprise given the advertising spend on social media these days. But it is a fairly good bet that when trademark laws are next updated, the ubiquitous # character will cease to be relevant.
The fad took off when brands realised that a catchy hashtag helped their adverts to go viral. So, in addition to their own straplines, they began registering the tags with which they labelled their posts and videos.
There are two leading varieties: the brand name with a hashtag in front of it, and some short phrase. In either case, the intention was the same: to stop competitors getting in on the act and hijacking the media conversation using that same hashtag.
But in the trademark world fads quickly become generic and lose all value when it comes to registration. Once the public becomes used to seeing a hashtag at the beginning of a registered trademark, the difference between, say, ARAMA and #ARAMA, ceases to be relevant.
In other words, much as adding an “s” at the end or slightly misspelling a word doesn’t count when distinguishing trademarks, the # itself ceases to be a distinctive element for purposes of registration. For my money, we’re already there. A registered trademark for ARAMA would protect #ARAMA and probably vice versa.
The second kind of trademark hashtag is more interesting. Not the # character itself so much as the different kind of strapline, a pithy phrase meant to convey the essence of the brand or conversation point. A strapline lite, if you like, and it is in this area that trademark law gets tricky.
If the hashtag is too descriptive, or just extols a characteristic of the brand, it can’t be registered as a trademark because the # character will not add the required level of distinctiveness. Moreover, the hashtag must be seen by the public as identifying the goods or services of a particular company. If it is treated by people as a way of linking posts on a wider subject or simply mocking a particular company generally, it won’t actually fulfil the legal function of a trademark and so can’t be registered.
Brand owners must also be careful when trying to claim legal control of a hashtag. All too often the public themselves hijack the campaign for humorous or other reasons. McDonald’s learnt this to its cost when it launched #McDstories to encourage people to share their great burger experiences. Cue instead mockery and insults.
If a brand owner genuinely wants to engage their customers on social media, trying to control the conversation is not the way forward. People see through it and are unlikely to be dissuaded from mockery just by that little ® symbol.
Ultimately, spending too much time registering hashtags is likely to result in #fail®.
Mark O’Halloran is a partner at the London law firm Coffin Mew