When used properly, hashtags can be a valuable component of any digital marketing campaign. 

In fact according to research, including a hashtag in a Tweet can get you double the engagement than tweets without hashtags.

But for all the benefits that hashtags bring, companies that aren’t careful about trademark and copyright laws could see themselves on the other end of a cease and desist order or even a lawsuit.

You see, there is such a thing as a trademarked hashtag. And even if the hashtag isn’t trademarked, if the term associated with it is protected, companies could be at risk if they misuse it.

Nicole Larrauri, president of EGC Group, a marketing agency based in Melville, N.Y., talked with CMSWire about some of the things you can do to protect your business from the legal and ethical issues associated with hashtags.

“As people, we can use most hashtags,” said Larrauri. “But there is a caution for brands, marketers and advertisers.”

Hashtags and Trademarks

Before we get into Larrauri’s recommendations, here’s a quick primer on hashtags and trademarks.

According to the United States Patent and Trademark Office (USPTO):

“A mark comprising or including the hash symbol (#) or the term HASHTAG is registrable as a trademark or service mark only if it functions as an identifier of the source of the applicant’s goods or services.”

In other words, your company must prove that you use the hashtag to sell and promote your product.

Other guidelines from the USPTO:

  • Adding a hashtag in front of a mark that cannot be registered on its own does not render it eligible for trademark protection
  • If a mark includes the hash symbol or the term HASHTAG, along with a term that is “merely descriptive or generic,” the application will be refused

4 Ways to Avoid Hashtag Failure

Nicole LarrauriWhen it comes to using hashtags in business, Larrauri recommends taking the following four precautions:

1. Don’t use trademarks within hashtags.

Larrauri cautions against using another company’s trademark, especially a competitor’s, in your tweets. “If you’re Burger King, for example, don’t use #bigmac,” said Larrauri.

2. Avoid the use of hashtags that could imply you have a partnership when you don’t.

Be careful about tweeting positively about a company and making it sound like an implied endorsement or like you have a partnership if one doesn't exist, she advised.

3. Don’t use hashtags to disparage our make libelous claims about another company.

“The same rules that apply in advertising about making false claims and disparaging remarks apply here,” said Larrauri. “Don’t take something that is seen as negative and associate with any type of hashtag. For example, don’t use #poisonous in a tweet about a competitor.”

4. Don’t hijack another company’s live event or Twitter chat. “While that’s not illegal,” said Larrauri, “it’s bad social media etiquette.”

Should You Register Your Hashtag?

With all the potential pitfalls that come with using competitor hashtags, what can you do to protect your own hashtags and brand on social?

Before rushing to the USPTO to fill out an application, Larrauri recommends taking a step back to determine whether or not it’s really worth your time and money to register your hashtag.

First, find out if your company has already trademarked the term or keyword used in your hashtag. If the term is already registered, trademark laws will apply to that term, whether or not a hashtag is associated with it.

You can conduct a search of registered trademarks using the Trademark Electronic Search System (TESS) on the USPTO site.

Second, because the approval time for trademarks can last from six months on, determine whether or not that hashtag is something important that you’ll want to use in the future — not just for a one-off campaign.

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