Pursuing the usual enforcement techniques can be difficult on social media, particularly when the identity of the infringer is unclear or unknown. There are many methods that people use to infringe on trademarks online. One way is competitors on social media sites will change logos or brand names just slightly to pass them as their own. And will profit off of it. For example, people will create accounts that use another person’s image and pictures, but be almost like a catfish. The longer the pages go undetected, the more the person can profit from it with ads or even accepting endorsements. Cybersquatting is another area where trademark rights can be infringed on the web or social media. “Cybersquatting is the bad faith registration of famous brand names as internet domain names in order to force the rightful owners of the marks to pay for the right to engage in e-commerce under their own trademark.” Cybersquatters will use a variation of the trademark that is only slightly different to gain revenue from people who land on the wrong website. Citigroup versus Citygroup raised this very concern. The real trademark owner was able to show they had lost 100,000 in just click bait revenue. Other times, the harm may actually be inflicted on consumers where they are confused into online scams. Enforcing trademark rights on social media can be difficult because infringers are often unknown or disappear quickly. Leaving marginalized communities without a person to go after legally. In addition, damage to their brand may have already happened through instagram scam pages or fake websites looking for clickbait. While social media trademark policies may be a start to helping solve some trademark infringement, much of the task is left to the trademark holder themselves. Thus, it is imperative that one constantly searches their mark on google and social media platforms to ensure others are not infringing.
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Hashtags got their start on Twitter over a decade ago as a way of making it easier for people to find, follow, and contribute to a conversation, but considering their influence, questions on whether they can be trademarked are prevalent. If you do not know, hashtags serve 3 major purposes. (1) Hashtags help you get found by your target audience; (2) improve your clickthrough rates; and (3) are a great tool for research. As seen with #blacklivesmatter. With its origins in one heartfelt Facebook post, following the 2012 shooting of 17-year-old Trayvon Martin, this hashtag has spawned a civil rights movement that has changed the face of the United States. There are now more than 26 Black Lives Matter chapters across the US. More than any civil rights movement in history, the Black Lives Matter movement has been brought together from across the world by the uniting power of social media. #aslicebucketchallenge Who doesn’t remember the summer of 2014, when Facebook newsfeeds everywhere were filled with people having ice and water poured over their heads? It was the first of the viral charity challenge hashtags, raising money and awareness for the ALS Association, and it set a precedent that many have tried to match in the years since. Those few examples prove that there’s probably no easier way to tell a digital narrative, and have it grow than the ability to use the hashtag. All sorts of movements have since taken up the hashtag and used it to great effect, ranging from the 2010 Tea Party movement of conservative populists, who have rocked American politics to activists. So now the questions is can you trademark these powerful marks? In the United States, a hashtag can be trademarked if it serves a source-identifying function for the trademark owner’s goods or services. There are, however, some shortcomings and concerns that companies should be aware of. Importantly, hashtags are inherently meant to be used by as many people as possible to develop online conversations. Given the exclusive nature of trademark ownership, hashtags can present a challenge to mark owners in policing uses of their hashtag trademarks. Relatedly, brand owners may open themselves up to exposure or even liability if their hashtag trademarks are used improperly or in a negative or controversial context by consumers. Ultimately, brand owners should weigh the benefits of joining the Internet “conversation” via the use of hashtag trademarks against the potential issues that can arise due to difficulties in policing how their hashtags are being used.
Two cases have greatly impacted how disparaging marks are evaluated under the Lanham Act. The first is Matal v. Tam where an Asian band called The Slants was allowed to trademark their band name despite the term being disparaging under the Lanham Act. The Court decided that this particular part of the Lanham Act that prohibited disparaging, immoral, or scandalous marks is unconstitutional under the First Amendment because it will not pass the strict scrutiny standard. This ruling inspired the second case in In re Brunetti the term FUCT was considered as an immoral or scandalous mark, but the court ruled the mark could be registered and that the terms immoral and scandalous are too broad. These cases have impacted greatly what can and can not be registered as a mark. Most companies have not rushed to register marks that would be disparaging, immoral, or scandalous because of the fear they will lose customers that may be offended. Companies that use these marks are those who sell products of a sexual nature, companies that would like to add shock value to the experience you get with them, or people who wish to reclaim terms that were once used negatively. Some examples of this are the band The Slants in the Tam case, Dirty Dicks Crab House, and French Connection UK or FCUK. Since the case, the USPTO has not seen many marks that would have previously been deemed disparaging, immoral, or scandalous.