Research by Thomson CompuMark has highlighted the effect of the changing social media landscape on trademark applications.
This indicates that nearly 1,400 applications to register trade marks around hashtags were made worldwide last year, compared to applications by only seven companies in 2010. Of these 2015 applications the US (1,042), Brazil (321) and France (159) made the most applications, with the UK coming in 4th place with 115.
Traditionally, the most successful trade marks have been for product or brand names. However marketing strategies in the digital age tend to centre on words and phrases that users are encouraged to repeat and share. Trade mark law varies from country to country, but generally speaking, it makes it far easier to register product and brand names rather than more ambiguous slogans. Despite this, increasing numbers of hashtag-based applications are now granted. Examples of successfully registered social media campaigns in the US include Nike’s #makeitcount and Coca Cola’s #cokecanpics – both of which are used on social media and more widely.
Whilst businesses would be unwise to pursue individuals who use a hashtag in the manner in which it is intended (i.e. to promote the brand through retweets), registration offers a tool to prevent rival businesses from using the same terms and phrases in their own marketing. Trade mark owners will have the usual options available to them to prevent the infringement (including the complaints procedure of the particular social media platform, and for more serious infringement, court proceedings).
A word of caution, however, for businesses that are thinking about registering their next big hashtag campaign – with formal registration comes a responsibility to maintain and use the trade mark, and not allow its dilution. The risk is that by registering the hashtag and not enforcing your rights, the trade mark may be liable for revocation. Of course, in the fast paced world of social media marketing, this may not come as a great loss to a business – it may have moved on to the next campaign – but brand owners should enter into the process with their eyes open and be prepared to monitor their trade mark portfolios proactively to avoid these pitfalls.