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Using Another’s Brand with a #Hashtag Could Be Infringing

Hashtags used in social media can be trademarks. Be sure to protect your own. However, be careful that you are not infringing on another by using another’s brand as a hashtag for yourself. To qualify as a trademark, use of your word or phrase preceded by the hashtag symbol should make clear that the entire phrase is the brand of your product or service, such as using #mybrand on a label or in the banner of your website. Mere use at the end of a sentence or tweet is likely not sufficient to create trademark usage #whenitislikethis. Conversely, use of #someoneelsesbrand as a hashtag is infringing when it is likely to confuse consumers as to whether you are somehow connected to that other brand. If you are using the hashtag phrase to capture business that is reasonably intended for the true brand owner, then you are probably infringing on the brand owner’s trademark rights. You are allowed to use the brand owner’s name in a hashtag as a “nominative fair use,” which is use in a sentence or narrative that discusses the brand owner or its products and services. Your use becomes infringing if you use the hashtag phrase to attract business to your own site.

 

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com