Trademark Tangles: how to navigate Intellectual Property in Hashtags and Influencer Marketing.

Introduction-

The influencer marketing explosion has given birth to an influential, but legally ambiguous, brand promotion landscape. With the content creators using their personal brand and digital presence to promote products, the classic lines between advertisement and intellectual property, specifically the trademark law, are constantly being tried. The popularity of the use of hashtags, where brand names and slogans are also frequently used, introduces an additional layer of legal uncertainty to the issue, and brand identity protection in the social media sphere is an important issue to both influencers .      This paper discusses the essence of trademark problems when using influencers and hashtags, the possibility of infringement, passing off and consumer deception in the age of the Internet.            

 The Trademark Foundation in the Internet Space.                                              Trademark refers to any sign, whether it is a word, phrase, logo, design, or a combination of any of them, which helps distinguish the origin of the goods or services of one company among the others. Its main interest is to ensure that the consumer does not get confused about the origin or sponsor of a product. Trademarks exist everywhere in influencer marketing: it may be a logo on a promoted product or the name of the company in the endorsed caption or a specific slogan in a video. The legal risks are found in the cases when the usage of such marks, particularly in the context of promotional materials posted by an influencer, is unauthorized or deceptive.

Influencer Marketing: Dangers of Unlicensed Use and Association.

Influencers knowingly or unknowingly may be held liable under the trademark law: they can make themselves and the brands they collaborate with vulnerable. The fundamental legal principle is the infringement of trademarks, which arises when a party uses a mark that matches with a registered trademark or is confusingly similar to it during the relationship with similar goods or services resulting into the possibility of confusing consumers

Implied Endorsement and False Association.

The implied endorsement or false association is one of the greatest risks. An influencer who in a positive, promotional sense uses a brand registered trademark, whether in the form of a logo or a product name or a unique jingle, without an official contract could be implying some sort of affiliation or sponsorship that does not occur.

 Scenario: An influencer is given a high-end handbag as a gift, and he or she makes a comprehensive review where he or she mentions its registered name and displays its logo in a prominent position. As long as they fail to reveal that this is an organic post and not a paid promotion, or the use of the object leads to the assumption of a greater, commercial connection, the consumers may think that the brand actually sponsored the content. By giving the false impression that they are sponsored, this unauthorized use may amount to a trademark infringement, or in a few jurisdictions, passing off -improperly representing one’s services or goods as those of another.

False Advertisement and Misrepresentation.

In a case where the influencer is being paid to endorse the product, he or she will have some legal responsibility on the assertions. When an influencer commits false or misleading statements about the nature, effectiveness, or provenance of a product and such statements are linked to the trademark of the brand, they may result in a trademark infringement lawsuit and false advertising.

 In the US, the Federal Trade Commission (FTC) or other regulatory agencies in different countries around the world require that the connection between a brand and an influencer is fully and conspicuously disclosed. Not using such terms as #ad, #sponsored, or even #paidpromotion is not only a violation of advertising rules, but it contributes to the higher chances of misleading the consumer that the post is commercial in nature, which a trademark/unfair competition claim revolves around.

Misalignment of Content and Reputation Rupture.

An influencer is a sort of a one-time spokesperson of the brand and its goodwill. In case the personal conduct of an influencer, as well as their confrontational opinions or the subject of their sponsored content, are fundamentally inconsistent with the brand values, it may result in the loss or erosion of the trademark of the brand. Although the acts of dilution and infringement are different, it shows that the actions of an influencer directly influence the value and integrity of the core intellectual property asset of a brand.

The Hashtag Headaches: Trademarks as a Guide.

The social media organizational and viral engines are the hashtags. Nevertheless, a hashtag that contains a registered trademark usually interferes with its role as a mere navigation tool, and its ability to serve as a source- identifier, which places the legal gray area.                                                                                                                        In case of a Hashtag an Infringing Trademark.                                                            The legal issue to critically consider with a hashtag made of a trademark is: is the hashtag itself an identifier of the source of the goods or services or is it purely descriptive, promotional, or an index?                                                                        Courts have held that a use of the mark of a competitor as a hashtag to describe a product, or even to compare it, need not infringe, on the condition that it passes the test of nominative fair use namely using another’s mark to refer to goods or services of the holder of the mark, without giving the impression of sponsorship or endorsement.    A hashtag can however be an infringing use when:

•  Probably confusing: It is best to avoid using a competitor branded hashtag to promote a similar product, offering the implication that the content is sponsored or made by the competitor.
•  As a primary source identifier: When the hashtag is used highly in a manner that it indicates that it is the brand and not a reference of the brand.                     #HashtagHijacking                                                                                        Hashtag hijacking happens when a brand whose hashtag is distinct, registered, or otherwise a recognizable branded hashtag (e.g., #MyBrandContest) is used by unauthorized users, who may be competitors, or otherwise disgruntled, to promote their own unrelated content or products or to post negative commentary.              Although the free speech principles generally cover using a brand name in a hashtag as a critical comment, any attempt to redirect the traffic to a rival product or any attempt to create an illusion of some official connection may amount to trademark infringement or unfair competition since the act is meant to trade on the goodwill of the original mark.

Copyright and Trademark of Campaign Hashtags.

Influencer campaigns often have unique and new hashtags that are developed by the brand (e.g., #BrandXGlowUp). Smart brands will tend to trademark such unique phrases. In the case of this scenario, the brand needs to make sure that its agreement with the influencer clearly covers the following:   

•  Mandatory Use: The use of the official campaign hashtag by the influencer should be mandatory to maintain a appropriate brand fit and monitoring.
• Prohibited Use: This is where the party seeking to prohibit the influencer against using the hashtag after the contract is concluded or after reaching the stipulated scope of the campaign.

Mitigation Strategies: The Way towards Compliance.

To reduce the risk of trademarks, both the brand and the influencer must operate with due caution, be educated, and employ strong contractual tools.                                    For Brands

• Strong Contracts: Prepare powerful influencer agreements with an agreed scope of trademark that will be used, with a stringent disclosure requirement, and solid indemnity provisions that will hold the influencer liable in case of any claims by third parties as a result of unauthorized use or false advertisement.                             • Simple Rules: Suggest influencers an elaborate style guide of how the brands trademarks (logos, slogans, brand names) and campaign hashtags should be used such as placement, font and disclosure wording required.                                                 • Active Monitoring: Use monitoring tools to monitor the use of the registered marks of the brand and campaign hashtags on social media platforms to promptly infringe, impersonate and hijack.                                                                                               For Influencers:                                                                                                       • Transparency is Non-Negotiable: To make sure to follow all disclosure rules and include clear and conspicuous disclosures at the beginning of the post, such as using the hashtags #ad or #sponsored before the main group of hashtags.                                  • Presumption, Fact-Checking Claims: Don’t post without verifying all claims made of a product. Of course, when you are paid to write a post, you are legally liable in case of a false or misleading statement.                                                                                  •Review Contracts: There should always be explicit and written agreement that you are allowed to use what, when and in what circumstances the trademarks in question

• CONCLUSION:                                                                                                      The convergence of the trademark law with influencer marketing especially due to the dynamic aspect of hashtags is a developing proving ground. Digital platforms have never before provided such access but at the same time, increase the threat of intellectual property conflicts. The key to success in this area is a joint legal policy in which the brands will focus on active trademark registration and monitoring, and the influencers will consider a commitment to transparency and legal adherence. The creative and commercial potential of influencer marketing can be fully and safely achieved only due to the joint responsibility and clear understanding of the law.