Winter 2019 - 154

LEGAL CORNER
The Latest Way to Protect Your Brand
BY ANGIE AVARD TURNER, ESQ.
Contributing Writer
H
ave you ever wondered how we ended up using
hashtags as a form of expression and branding
on multiple social media platforms? Before
social media was invented, hashtags were used as early
as 1988 on Internet Relay Chat to label groups and topics.
Grouping content was thought to make it simpler for users
to find and process information.
The first recorded social media hashtag was posted to
Twitter in August 2007. The first hashtag was #barcamp.
Chris Messina, a former Google developer, tweeted, " ?how
do you feel about using # (pound) for groups. #barcamp. "
His goal was to create a place where content could be
exchanged about a technology unconference that had a
global following.
However, it wasn't until Chris Messina reached out to
someone using the words " SanDiegoFire " as a tag on Flickr
to index those photos pertaining to that event in California
that hashtags began to spread. Messina suggested that he
use #SanDiegoFire on all relevant tweets. It is after that
occurrence that Twitter users began using hashtags to
group content. Now, we use hashtags on multiple media
platforms. Sometimes they are used as branding. Other
times they are used to as a description. Then there are times
we are simply making a statement or editorial comment.
DO HASHTAGS QUALIFY AS TRADEMARKS?
It is clear hashtags do not meet the test to qualify as
either protectable by patent or copyright.
154 WINTER 2019
According to the United States Patent and Trademark
Office (USPTO), a trademark is a word, phrase, symbol,
and/or design that identifies and distinguishes the source
of the goods of one party from those of others. A service
mark is a word, phrase, symbol, and/or design that
identifies and distinguishes the source of a service rather
than goods. Some examples include: brand names, slogans
and logos. The term " trademark " is often used in a general
sense to refer to both trademarks and service marks.
Unlike patents and copyrights, trademarks do not expire
so long as they are being used continuously in the stream
of commerce. There are certain rights that are awarded to
those who register their marks with the USPTO. Here is a
list of those rights.
* National notification and notice
* Inclusion in USPTO trademark searches
* Use of the ® symbol
* Legal presumption of ownership and exclusive
rights, if on the Principal Register
* Incontestable status after five years of registration
* Increased domain name protection
* Facilitated foreign trademark registration in over 50
countries via the Madrid Protocol
* The ability to register with U.S. Customs to stop the
importation of counterfeit and confusingly similar
goods
However,
when it comes to trademark, the answer may be changing.
* Monetary remedies, including infringer's profits,
damages, costs, and possibly, treble damages and
attorney's fee
Winter 2019

Table of Contents for the Digital Edition of Winter 2019
