Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

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Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

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On March 22, 2017, the Supreme Court held in <a href="https://www.supremecourt.gov/opinions/16pdf/15-866_0971.pdf" target="_blank" rel="noopener">Star Athletica, LLC v. Varsity Brands</a> that design elements of cheerleading uniforms may be protected under the Copyright Act. The 6-2 decision, written by Justice Thomas, clarified the scope of protection afforded to clothing designs and, more broadly, designs on useful articles.Varsity Brands, Inc.—the country’s largest cheerleading supplier—owns more than 200 copyright registrations for two-dimensional designs consisting of combinations of chevrons, stripes, and other colorful shapes for its cheerleading uniforms. At issue in this case were the five pictured designs.Varsity Brands sued Star Athletica, LLC, an upstart competitor, for copyright infringement. The District Court for the Western District of Tennessee granted Star Athletica’s motion for summary judgment, holding that the designs could not be conceptually or physically separated from the uniforms, and they were therefore ineligible for copyright protection. The Copyright Act makes “pictorial, graphic, or sculptural features” of the “design of a useful article” eligible for copyright protection as artistic works only if those features “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” The Sixth Circuit reversed, concluding that the graphics were “separately identifiable” and “capable of existing independently” of the uniforms.In affirming, the Supreme Court laid out a two-part test for when a feature incorporated into the design of a useful article is eligible for copyright protection: When the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article; and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated. “To be clear, the only feature of the cheerleading uniform eligible for a copyright in this case is the two-dimensional work of art,” the Court explained. “Respondents have no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions to the ones on which the decorations in this case appear.”Protection for fashion designs is a hotly contested topic because such designs do not fit neatly into any form of intellectual property under U.S. laws. Numerous parties filed amicus curiae briefs in the case, with the Council of Fashion Designers of America arguing that a ruling for Star Athletica “would have a swift and deleterious effect” and leave fashion designers “defenseless against copyists.” Other groups, meanwhile, argued that protection for useful items should remain the province of patent law, which has stricter limits on eligibility and duration.Justice Breyer, joined by Justice Kennedy, wrote a strenuous dissent which did not disagree with the majority’s separability test but argued that the designs at issue could not be perceived as works of art separable from the cheerleading uniform because when “imaginatively remov[ed]” and placed on a canvas, the designs would still possess the contours of a cheerleader’s dress. This difference of opinion suggests the difficulties that lower courts may have in applying the Court’s separability test in practice.Moreover, Justice Breyer voiced concerns with the effect of the ruling on the fashion industry. “A decision by this court to grant protection to the design of a garment would grant the designer protection that Congress refused to provide,” Justice Breyer wrote. “It would risk increased prices and unforeseeable disruption in the clothing industry, which in the United States alone encompasses nearly $370 billion in annual spending and 1.8 million jobs.”The Supreme Court’s ruling does not fully resolve the question of whether the designs at issue merit copyright protection, however, as the case will now return to the trial court on the question of whether the designs possess enough originality to be protected by copyright—a separate question from the one addressed by the high court.While the reach of this ruling remains to be seen, under the standard set forth in Star Athletica, separable artistic elements of useful articles, from apparel to furniture, may be easier to register and protect, allowing designers to become more aggressive in preventing copying of their designs. As the lower courts interpret and apply this significant ruling, we are likely to see more cases addressing the scope of copyright protection for artistic elements of useful articles.*             *             *For more information on copyright issues, please see the following Socially Aware articles: <a href="http://www.sociallyawareblog.com/2017/02/06/repeat-infringer-policy-requirement-for-key-copyright-safe-harbor-for-online-service-providers/" target="_blank" rel="noopener">Second Circuit Clarifies “Repeat Infringer” Policy Requirement for DMCA Copyright Safe Harbors</a>; <a href="http://www.sociallyawareblog.com/2016/12/06/new-copyright-office-rule-creates-potential-gotcha-for-blogs-and-websites-hosting-user-generated-content/" target="_blank" rel="noopener">New Copyright Office Rule Creates Potential “Gotcha” for Blogs and Websites Hosting User-Generated Content</a>; <a href="http://www.sociallyawareblog.com/2016/06/24/show-me-the-money-supreme-court-guidance-on-attorneys-fees-awards-in-copyright-cases/" target="_blank" rel="noopener">The Kirtsaeng Opinion: Supreme Court Guidance on Attorneys’ Fees Awards in Copyright Cases</a>; and <a href="http://www.sociallyawareblog.com/2016/05/03/do-not-go-gentle-into-that-jurisdiction-no-situs-of-injury-merely-because-copyrighted-material-is-accessible/" target="_blank" rel="noopener">Do Not Go Gentle Into That Jurisdiction: No “Situs of Injury” Merely Because Copyrighted Material Is Accessible</a>.

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Supreme Court Rules Cheerleading Uniform Designs Are Copyrightable

Supreme Court Rules Cheerleading Uniform Designs Are Copyrightable

On March 22, 2017, the Supreme Court held in Star Athletica, LLC v. Varsity Brands that design elements of cheerleading uniforms may be protected under the Copy

Since our previous article on the emerging issue of <a href="https://www.sociallyawareblog.com/2015/05/13/trademarks-hashtags-as-trademarks/" target="_blank" rel="noopener">trademark rights in hashtags</a>, the use of hashtags in social media marketing has continued to grow. Described as the “ignition keys to a social media keyword search,” hashtags can be powerful tools for creating communities around a brand. Indeed, <a href="http://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=4579&context=nclr" target="_blank" rel="noopener">recent scholarship</a> suggests that modern brand narratives are written in collaboration with consumer communities rather than by brand owners acting alone.A catchy hashtag creates its own social media channel and brand owners naturally want to prevent competitors from hijacking the content stream tied to their cleverly crafted messages.  To safeguard the investment in this narrative, companies are increasingly seeking trademark protection for their hashtags. Applications for hashtag trademarks continue to soar, with over <a href="http://www.wsj.com/articles/companies-increasingly-trademark-hashtags-1459333936" target="_blank" rel="noopener">1,042 hashtag trademark applications in 2015</a> in the United States alone. However, despite the United States Patent and Trademark Office’s (or USPTO’s) <a href="http://www.wsj.com/articles/companies-increasingly-trademark-hashtags-1459333936" target="_blank" rel="noopener">guidance regarding hashtag trademarks</a> in its Trademark Manual of Examining Procedure (or TMEP), hashtags continue to pose challenges for both USPTO examiners and the courts.At the USPTO, examination and registration of hashtag marks remain somewhat inconsistent. As we noted in our previous article, the USPTO has addressed the issue of hashtags’ ability to function as trademarks in the “<a href="https://mpep.uspto.gov/RDMS/TMEP/current#/current/ch1200_d1ff5e_1b5ad_3bc.html" target="_blank" rel="noopener">Hashtag Marks</a>” section of the Trademark Manual of Examination Procedure. In essence, the TMEP states that the hashtag symbol should be ignored by the examiner and the hashtag mark should be examined in the same manner that any other tag line or phrase would be. In other words, according to the USPTO, a hashtag is no more—but also no less—capable of functioning as a trademark than the non-hashtag form of the relevant tag line or phrase would be. But does this approach ignore some unique features of hashtag marks?First, while descriptiveness is an issue for both hashtag and non-hashtag marks, the fact that hashtag marks also function as online search terms would seem to increase the need for a hashtag to have a close and obvious connection to a particular brand if it is to be recognized as a trademark—i.e., an identifier of the source of goods and services—and not merely a search term. For example, the word “Tasty” may be merely descriptive when used on a package of bread, but #Tasty is arguably even less distinctive when used only in a social media campaign, considering that the hashtag does not actually appear on the product and, considered as a search term, could be relevant to any number of topics.The TMEP notes this problem and instructs that #Skater for skateboarding equipment would not be registrable as merely descriptive. However, in practice, the USPTO has not always been entirely consistent in assessing the descriptiveness of hashtag trademarks. For example, the USPTO has allowed <a href="http://tsdr.uspto.gov/#caseNumber=85942398&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch" target="_blank" rel="noopener">#LetsBowl</a> for bowling balls and <a href="http://tsdr.uspto.gov/#caseNumber=4,551,737&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch" target="_blank" rel="noopener">#Smart</a> for clothing without raising a descriptiveness objection. The USPTO also allowed Abercrombie & Fitch to register <a href="http://tsdr.uspto.gov/#caseNumber=86242575&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch" target="_blank" rel="noopener">#SoCalStylist</a> for retail store services featuring clothing and accessories, and a non-profit to register <a href="http://tsdr.uspto.gov/#caseNumber=86604240&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch" target="_blank" rel="noopener">#KickHunger</a> for promoting public awareness of hunger and hunger relief. But the USPTO found <a href="http://tsdr.uspto.gov/#caseNumber=4,630,209&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch" target="_blank" rel="noopener">#WeatherWednesday</a> for an online newsletter about the weather and <a href="http://tsdr.uspto.gov/#caseNumber=4,718,322&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch" target="_blank" rel="noopener">#MusicVideoMonday</a> for advertising services and mobile marketing to be merely descriptive, allowing only registration on the supplemental register.Second, the fact that a hashtag often appears only on social media rather than on the goods themselves or in advertising raises questions regarding what constitutes an <a href="http://www.uspto.gov/trademark/laws-regulations/specimen-refusal-and-how-overcome-refusal" target="_blank" rel="noopener">acceptable specimen</a> for a hashtag mark. The USPTO has not formulated a clear policy on this issue. The TMEP notes that if #SewFun was the subject of a trademark application for “instruction in the field of sewing” with a specimen consisting of a screenshot of a social networking site used to organize user comments about sewing classes that the applicant offers, the mark would be refused registration for failure to function as a service mark. Accordingly, the USPTO rejected the initial specimen for <a href="http://tsdr.uspto.gov/#caseNumber=86269433&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch" target="_blank" rel="noopener">#LeadershipFlow</a> in connection with business education services that consisted of the applicant’s website with posts about business topics. However, the USPTO allowed Procter & Gamble to register <a href="http://tsdr.uspto.gov/#caseNumber=86517834&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch" target="_blank" rel="noopener">#LikeAGirl</a> for “providing information in the field of female empowerment, anti-gender discrimination via social media” with a screenshot of its Twitter page as a specimen.Only a handful of court decisions have dealt with the subject of trademark rights in hashtags to date, with similarly inconsistent outcomes. As <a href="https://www.sociallyawareblog.com/2015/05/13/trademarks-hashtags-as-trademarks/" target="_blank" rel="noopener">we previously wrote</a>, a district court in Mississippi held that use of the tags #FratCollection and #FraternityCollection by a competitor of the clothing maker Fraternity Collection was sufficient to state a claim for false advertising under the Lanham Act and for trademark infringement under state law. However, in a recent California case, <a href="http://scholar.google.com/scholar_case?case=1219686278969605830" target="_blank" rel="noopener">Eksouzian v. Albanese</a>, the court concluded that a competitor’s use of a hashtag did not violate a settlement agreement on trademark usage between the parties because the hashtag was “merely a functional tool.”The parties in Eksouzian had jointly developed a compact vaporizer pen, but later separated and entered into a settlement agreement pursuant to which the plaintiffs were permitted to use the terms “Cloud” or “Cloud Vapes” as trademarks, but not in such close association with the words “pen” or “penz”—common descriptors for compact vaporizers—as to form a unitary trademark. Plaintiffs then used the hashtags #cloudpen and #cloudpenz in connection with promotional contests on social media. The court found that plaintiffs did not breach the settlement agreement because “hashtags are merely descriptive devices, not trademarks, unitary or otherwise, in and of themselves” and use of the hashtag “is merely a functional tool to direct the location of Plaintiffs’ promotion so that it is viewed by a group of consumers, not an actual trademark.” This conclusion seems to be at odds with the USPTO’s willingness to register hashtags as trademarks.In another recent case, Public Impact, LLC v. Boston Consulting Group, Inc., a Massachusetts court came to the opposite conclusion. In that case, Public Impact, LLC, an education policy and management consulting firm that owns a federal registration for the mark PUBLIC IMPACT, sought a preliminary injunction to prevent the defendant, Boston Consulting Group (or BCG), from using the hashtag #PublicImpact and the username @4PublicImpact on social media. After determining that BCG had not submitted sufficient evidence to show that “public impact” is generic for consulting services in light of the fact that Public Impact’s federal registration had attained incontestable status, the court concluded that BCG’s use of the username and hashtag was likely to constitute trademark infringement, particularly given the similarity of the services provided by the two organizations. Accordingly, the court enjoined BCG from using the phrase “public impact” with two or fewer letters, numbers, or characters appended in any form on social media or in other commercial activities.In sum, the application of trademark law to hashtags and the rapidly evolving social media landscape is still in its very early stages. With regard to federal registration, one scholar has argued that the USPTO should treat hashtag marks as “<a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2630195" target="_blank" rel="noopener">primarily merely a hashtag</a>” until the applicant can establish that the mark actually functions as a source indicator, an approach that could avoid some of the inconsistencies seen in the registration process today. The bigger questions regarding the scope of protection afforded to hashtag marks and the analysis of trademark infringement involving use of hashtag marks on social media, however, have yet to be resolved.*          *        *Check out the first article in this series: <a href="https://www.sociallyawareblog.com/2015/05/13/trademarks-hashtags-as-trademarks/" target="_blank" rel="noopener">#Trademarks?: Hashtags as Trademarks</a>For other Socially Aware posts on intellectual property issues, please see the following: <a href="https://www.sociallyawareblog.com/2016/06/24/show-me-the-money-supreme-court-guidance-on-attorneys-fees-awards-in-copyright-cases/" target="_blank" rel="noopener">The Kirtsaeng Opinion: Supreme Court Guidance on Attorneys’ Fees Awards in Copyright Cases</a>; <a href="https://www.sociallyawareblog.com/2016/05/03/do-not-go-gentle-into-that-jurisdiction-no-situs-of-injury-merely-because-copyrighted-material-is-accessible/" target="_blank" rel="noopener">Do Not Go Gentle Into That Jurisdiction: No “Situs of Injury” Merely Because Copyrighted Material Is Accessible</a>; and <a href="https://www.sociallyawareblog.com/2015/03/03/twenty-years-down-the-road-a-qa-with-paul-goldstein-author-of-copyrights-highway/" target="_blank" rel="noopener">Twenty Years Down the Road: A Q&A With Paul Goldstein, Author of Copyright’s Highway</a>.

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

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#Trademarks?: Hashtags as Trademarks Revisited

#Trademarks?: Hashtags as Trademarks Revisited

Since our previous article on the emerging issue of trademark rights in hashtags, the use of hashtags in social media marketing has continued to grow. Described

Hashtags have become ubiquitous in social media, but their status as intellectual property—particularly as trademarks—is still developing. <a href="http://en.wikipedia.org/wiki/Hashtag" target="_blank" rel="noopener">First adopted by Twitter users</a> to link user posts, hashtags are character strings preceded by the “#” symbol that generate a link to all other posts containing the same tag. Today, in addition to providing the search-related functionality for which they were first developed, hashtags provide businesses new ways to <a href="http://www.forbes.com/sites/deniselyohn/2015/02/18/use-hashtags-to-generate-greater-brand-engagement/" target="_blank" rel="noopener">engage with consumers</a>. Hashtag marketing campaigns by businesses generate brand awareness by encouraging social media users to post with the campaign tag and, in return, offer users discounts, prizes or even a chance to become a model.But can a hashtag be registered as a trademark? The functional nature of hashtags led to initial uncertainty on this question, which the U.S. Patent and Trademark Office settled in 2013 when it added a new section to the Trademark Manual of Examination Procedure on registration of hashtag marks. The USPTO defines a hashtag as “a form of metadata comprised of a word or phrase prefixed with the symbol ‘#’” and states that a hashtag mark may be registerable, but only if it functions as an identifier of the source of the applicant’s goods or services. For example, #ingenuity would be registerable for business consulting services as a distinctive term, while #skater for skateboard equipment would be merely generic and non-registerable. In addition, to obtain a registration, the applicant must provide evidence of the use of the mark in connection with the relevant goods or services, which means that, like any other trademark, a hashtag mark must actually be used in commerce to be registrable.Unlike traditional tag lines, which are meant to be used primarily by the mark owner, hashtags are typically intended to be disseminated by social media users. For example, the makers of Mucinex have registered #blamemucus, which allows potential consumers to commiserate about their colds through social media, as well as spread the word about Mucinex and participate in drawings for prizes. The #blamemucus registration covers both the pharmaceutical products themselves (with a store display bearing the mark as a specimen of use) and services consisting of providing information in the field of respiratory and pulmonary conditions via the internet (with the company website as a specimen). By covering both the core goods and online services, the registration provides broad protection for the hashtag mark against use by competitors. Companies may also attempt to register a phrase that has already become an internet meme. For instance, an application for #throwbackthursday has been filed by producers of an entertainment and comedy series, while #fixitjesus has been claimed by a maker of T-shirts.As one might expect, the widespread use of hashtags has resulted in trademark disputes from time to time. In 2010, for example, a Wyoming-based chain of Mexican restaurants called Taco John’s, which owns a federal registration for the mark “Taco Tuesday,” sent a <a href="https://www.techdirt.com/articles/20100803/10532810480.shtml" target="_blank" rel="noopener">cease-and-desist letter</a> to an Oklahoma restaurant called Iguana Grill seeking to stop Iguana Grill’s use of the phrase “Taco Tuesday” and the hashtag #tacotuesday for its own taco promotion. Iguana Grill did agree to stop using the name for its taco night; as of this writing, the <a href="https://www.facebook.com/Iguanaokc" target="_blank" rel="noopener">restaurant’s Facebook page</a> exhorts customers to “Keep a look out for our taco specials . . . for Iguana Tuesday!” But, as is often the case with arguably heavy-handed trademark enforcement efforts, Taco John’s cease-and-desist letter also resulted in <a href="http://okiefoodie.com/tag/okc/" target="_blank" rel="noopener">considerable public criticism of Taco John and outspoken support for Iguana Grill</a>.In March 2015, clothing maker Fraternity Collection brought trademark infringement claims in federal district court in Mississippi against a former designer based on use of the tags #fratcollection and #fraternitycollection on social media. The court accepted at the pleading stage “the notion that hashtagging a competitor’s name or product in social media posts could, in certain circumstances, deceive consumers.” Accordingly, the court held that Fraternity Collection’s complaint stated a claim for false advertising under the Lanham Act and for trademark infringement under state law, and denied the designer’s motion to dismiss those claims. This was, as far as we are aware, the first time that a court has found that use of a competitor’s mark in a hashtag, rather than on the product itself, could result in consumer deception.The Fraternity Collection case involved a clearly competitive use of the hashtags. What remains unclear, however, is how trademark law will treat hashtags used for non-competitive goods and services. The traditional test for infringement is the likelihood of consumer confusion. This inquiry weighs a number of factors, including the similarity of the respective marks, similarity of the respective goods or services and the advertising channels used by the parties. Thus, courts have generally found consumer confusion to be unlikely when similar or identical marks are used for unrelated goods or services that tend to be advertised in different channels. The use of identical hashtags, however, creates a single feed of all posts under same tag, regardless of how different the advertised goods or services may be. Unlike in the physical world, where businesses can stake out non-overlapping niches for unrelated goods or services, the tag itself acts as an advertising channel on social media platforms. It remains to be seen how this functional aspect of hashtags will be weighed by the courts in the consumer confusion analysis.As competition for attention among social media users increases, trending tags may become an increasingly prized commodity. On the other hand, given the ephemeral nature of some hashtags and the fleeting popularity of social media fads, companies should consider the long-term viability of a particular hashtag before expending time and resources to protect it. In any event, before adopting hashtags for social media campaigns, it is imperative to research potential conflicts, which may include trademark clearance searches to identify conflicting uses. And if a hashtag has already become an effective marketing tool, it may be time to consider registering it as a trademark.

#Trademarks?: Hashtags as Trademarks