#havewereallythoughtthisthrough?: Why Granting Trademark Protection to Hashtags Is Unnecessary, Duplicative, and Downright Dangerous
39 Pages Posted: 9 Sep 2016 Last revised: 15 Jun 2018
Date Written: September 14, 2015
Abstract
Hashtag use in social media and popular culture continues to explode. In a brilliant skit in late 2013, Tonight Show host Jimmy Fallon and his friend, Justin Timberlake, hilariously lampooned the use of hashtags in everyday life. If that was intended to slow the proliferation of hashtags, it didn’t work; two years later, it’s nearly impossible to navigate through a Twitter, Facebook, or Instagram feed without encountering at least one instance of the “#” symbol. Consequently, advertisers are constantly developing novel and creative ways to use the hashtag for monetary gain. As the importance and value of hashtags continue to grow, the intellectual property implications that accompany that rise come into ever-increasing focus.
The general consensus appears to be that hashtags are deserving of the same trademark status as any other word, term, or phrase that serves to distinguish a product or service. But it’s as if that conclusion has been reached in a shoulder-shrugging, “why not?” sort of way, with little (if any) discussion devoted to why it might be a bad idea to extend that law that far. This article argues that granting trademark protection to hashtags provides no advantage to a marketer that it couldn’t already obtain through traditional (i.e., sans hashtag) registration. What it does do is arm companies with a weapon that would make it easier to bully social media networks and users into silence when these “trademarked” hashtags spark viral discussions that go off the tracks — something that seems to happen with amusing regularity.
Keywords: trademark, civil procedure
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