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Trademark protection and social media: the rise of the hashflag

01-11-2017

First there were hashtags, and now there are hashflags – also known as Twitter emojis. These custom icons were first introduced by Twitter in 2010 to promote the 2010 World Cup in Brazil. Then just a simple flag emoticon, their use has since expanded into a whole range of different images and subject areas. Novagraaf’s Claire Jones examines the IP implications.

If you’ve not seen a Twitter emoji yet, then you will soon. Originally known as hashflags, these custom emojis are becoming a favoured tool for marketing teams looking to promote an event or specific occasion on Twitter; for example, a sporting event or film launch. Unlike other emojis, the Twitter versions are not permanent and only exist during the period of the campaign (they also only work on Twitter). The icon automatically appears after the user has posted the relevant hashtag; for example:

 

Creating some buzz
Coca-Cola was selected as the first company to test branded hashflags, with its #ShareACoke getting an image of clinking coke bottles for a campaign in September 2015.

 

What are the issues?
The first thing to note is that the emojis are only active for a specific time – generally the lifetime of the event or campaign. There is a risk then that the same or similar emoji may be used again in a different campaign; although branded emoji – such as the Coke bottles – are specific to the paying company.

There are concerns that use of the emojis will change how Twitter can actually be used. Twitter decides which hashtags are popular and, by extension, which ones get an icon (where not paid for by a company). Clearly, topics that are hashflagged will get far more attention, and this in turn drives sales opportunities for Twitter from companies seeking their own custom emojis.

The hashflags also come directly from Twitter, as opposed to their use in other media where they tend to be user-driven. As such, critics argue that they enable Twitter to push certain topics and to effectively endorse one brand, broadcaster or political party over others. It’s important to note too that during the active period of a hashflag, the user doesn’t get a choice over whether to include the image with the hashtag. Certain hashtags will append the icon automatically and it cannot be removed.  

IP issues to consider
In an earlier article, we discussed some of the IP issues around #hashtags, and these points are still valid when viewed in connection with hashflags.

In particular, if a company is looking to purchase a custom Twitter emoji, full availability searches should be conducted on both the hashtag and the hashflag, to avoid any potential issues. A recent dispute between American football teams illustrates the risk of not doing so:

Twitter unveiled custom emojis for each NFL team at the start of the 2017 season. For the Chicago Bears, use of #GoBears automatically inserted the Bears logo: However, rival team Cal Golden Bears (Regents of the University of California) owns the trademark registration for the mark “GO BEARS”. Cal Golden Bears understandably raised objections to the hashflag associated with #GoBears, especially when the Chicago Bears logo started appearing on its own official Twitter account. The Chicago Bears now uses the hashtag #DaBears.

It looks as if Twitter did not perform any trademark clearance searches prior to linking the Bears emoji image to the hashtag. But, in addition to the risk of trademark infringement, the attaching of hashflags to hashtags could also go against its own trademark policy, which states that: “Using another's trademark in a manner that may mislead or confuse others about your brand affiliation may be a violation of our trademark policy.”

As with hashtags, brand owners should therefore monitor the use of hashtags, trademarks and hashflags on social media, including Twitter, for any potential infringement. There is a list of current hashflag emojis at http://hashfla.gs, and the website also includes an archive of past emojis.

For more on trademark protection on social media, speak to your Novagraaf attorney or contact us.

Claire Jones is a trademark attorney in the London office of Novagraaf