Just because there are not yet specific trade laws dealing with hashtag use doesn’t mean you can’t get into a lot of trouble using them.
Starting a new business, especially a new fashion business, is far more challenging than most people realize when they begin. Even those who have done startups more than once routinely find that the process only gets more difficult as business and industry landscapes change. What worked last year may not work this year. What was true five years ago is likely to be the opposite of current conditions. How does one break out and become recognized in a crowded field that some would consider already over-saturated?
Most everyone recognizes that social media use is a critical aspect of any new business and with social media comes hashtag use. Hashtags help group the flood of information into some form of loose order so that people who are looking for a specific industry or topic can find related information without having to scroll through endless lists. For example, using the hashtag #womenswear or #springfashion might help promote your social media entry so that people looking for women’s wear or spring fashion are more likely to see it. There is an entire genre of social marketing devoted to hashtag creation and strategy so that businesses can get the most from their social media use.
However, just as hashtag use can benefit a business, it can also cause a bit of trouble if one is not careful. Specifically, some hashtag use may fall under trademark law. Even if the use was inadvertent and not meant to cause a problem, defending your company against such a charge incurs tremendous legal expense at a point where your business really doesn’t have that kind of capital to expend.
An article posted on StartupFashion.com this week attempts to address this very gray legal area. This is another of those times when technology has moved faster than the law and there are not, at the moment, specific laws that directly spell out what hashtag use might not be acceptable. However, general trademark law still applies, even online, even if the person creating the hashtag didn’t know anything about the trademark.
Where small and startup businesses can be particularly vulnerable is when the person in charge of social media accounts doesn’t know what caution to exercise. Many use interns, recent college graduates, or even their own high school-age children to work social media because we assume they know how to navigate social media well. While that presumption may be accurate, we cannot assume they know the first thing about trademark law and how easily one can create a lot of problems.
For example: Let’s pretend a brand uses the slogan, “Bigger, Better, Bouncier” to promote their line of trampolines. Your social media person sees that slogan somewhere and decides it would make a good hashtag for promoting your new line of support bras. They start posting pictures of models wearing the bras with the hashtag #BiggerBetterBouncier and, the Internet being what it is, the hashtag suddenly takes off. Next thing you know, everyone is associating the slogan with your new bras. Sales are going through the roof. This is a good thing, right?
Not if you own the trampoline company who had the slogan trademarked. Even though you are in an entirely different, unrelated industry, your successful use of the slogan in hashtag form could be in violation of trademark law for creating confusion within the originating market. You have effectively stolen the trampoline company’s trademarked slogan, even though your actions may have been inadvertent.
The waters here are murky and every time a new case comes up it tends to be long and complicated because there is no real precedent for judges to consider. So, how does one make sure their hashtags aren’t getting them into trouble, or inversely, leaving them vulnerable?
One good place to start is the website for the United States Patent and Trademark Office (USPTO). If you’re not sure whether a phrase or slogan has been trademarked, use the search engine here to find out. Also, if you have a phrase or slogan you plan to use in marketing your products or services, getting that trademarked is probably not a bad idea. Be aware, however, that the trademark process is not especially inexpensive. Only trademark phrases and slogans you want permanently identified with your brand.
Also consider instructing the person in charge of your social media accounts to only use hashtags that are approved and apply directly to your brand. Using a regularly trending hashtag such as #FridayFeeling or #MondayMotivation is probably safe, but a hashtag that involves a specific event, venue, or infers a different brand should probably be avoided.
Hashtag use can be an extremely powerful marketing tool not only for fashion startups but any small business, especially those with small marketing budgets. A little care and consideration, though, can help prevent legal nightmares that might sink your new business before it even gets started.