HashflagsDecember 1, 2017

“It’s all a Twitter”

If you spend a lot of time on Twitter… and these days it seems like everyone does, you have probably noticed an increase in the use of customized emojis/images—known as hashflags. The hashflag is automatically inserted by Twitter whenever a certain hashtag (#) is used, i.e., #ShareaCoke. Twitter first launched hashflags in 2010, but soon realized this was a great revenue source and began charging companies use of hashflags.

If your company is interested in securing a hashflag, it is advisable to undertake a trademark search on both the hashtag and corresponding hashflag—as the Chicago Bears recently found out.

This fall, Twitter put out customized hashflags for each NFL team. The Chicago Bears’ logo became its customized hashflag that would show up anytime someone tweeted #GoBears.The problem is that University of California, Berkeley owns a trademark registration for GO BEARS for among other things use with computer software for enhancing the fan experience. So, when Cal’s fans tweeted #GoBears, Twitter automatically inserted the Chicago Bear’s logo into the tweet. Fortunately, in this situation, it just took a tweet or two by Cal Athletics for the situation to be resolved (Chicago Bears changed the hashflag’s hashtag to #DaBears).

But this raises the issue: Can use of a hashflag (or hashtag for that matter) be trademark infringement or unfair competition? While there are various issues for consideration, the simple answer is yes, at least in some instances. Consequently, if you are looking to adopt a hastag/hashflag, it is advisable to obtain a trademark search before adoption. Correspondingly as a trademark owner, you should consider protecting your brand by monitoring the use of hashtags/hashflags on social media.

Christine Lebron-Dykeman is Chair of the Trademark Practice Group at McKee, Voorhees & Sease, PLC. For additional information, please visit www.ipmvs.com or contact Christine directly via email at christine.lebron-dykeman@ipmvs.com.

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