The humble hashtag, designed to help social media users follow select conversations and topics, has become the darling of social media marketers across the world. But hashtag use has often blown up in brands’ faces, causing brand embarrassment and even reputation damage. Given brands need to use hashtags to increase social media engagement, they must also tread carefully. Let’s look at the practical and legal implications of using hashtags in social media marketing.
In August 2017, the social media hashtag turned ten years old. When former Google and Uber engineer Chris Messina suggested using the pound sign as a means to create group messages it was a pivotal moment in social media marketing. The hashtag is now used around 125 million times a day for everything from creating awareness of topics, following sports matches and conferences, and – of course – branded content.
Using hashtags on social media channels are proven to improve the engagement and reach of posts, which is why brands are so keen to deploy them. But brands need to think carefully when they include hashtags in their posts, especially if it is specific to a campaign, as this is where problems often occur.
Hashtag best practice
What should brands consider before selecting a hashtag to support their activity?
1) Assess the risk
A hashtag can often be turned on its head and used against a brand. While many of the worst examples come from the early days of hashtagging, such as brands inviting trouble by running Twitter Q&As, some marketing slogans can be used against brands.
Marketers have to step outside into the public domain and consider whether their campaign hashtag could be used against them, sometimes known as a ‘bashtag’ – anyone remember #WaitroseReasons or #Selfie4England?
2) Is the hashtag self-indulgent?
Many marketers don’t realise that most people outside their organisation do not care about them. It could backfire.
3) Is anyone else using it?
Be careful not to use a hashtag that’s already aligned closely with another brand. General interest trends, such as #WisdomWednesday or #ThrowbackThursday are fair game – but be sure to add value with whatever you share.
4) Don’t Hashjack – unless you’re clever
As cited in point 1, several brands have used trending tweets to promote their messaging, such as disasters or political upheaval. This is totally inappropriate and will get the slap-down from the public that it deserves.
However, if something funny is trending then brands can really stand out by getting involved, as KFC did recently responding to Donald Trump’s nuclear button tweets.
5) Don’t go crazy…unless you’re on Instagram
Twitter’s own advice is to use no more than two hashtags per tweet. Research finds that engagement drops by 17% when more than two hashtags are used, and it’s a similar story over on Facebook, although the jury’s out on how much benefit they drive on that channel.
On Instagram, there’s far more licence and posts can include up to 30 hashtags.
Limited use of emojis can also help drive social media engagement.
The legal standpoint
Brands’ use of hashtags also got me thinking about the legal aspect. Can a brand trademark a hashtag to protect it for their marketing use and prevent others from using it? This is a question I put to Charlie Winckworth, a partner at law firm Hogan Lovells International LLP.
“Brands can apply for a trade mark for a hashtag – and indeed some do,” he told me. “Like any other application though, they will have to meet the absolute grounds requirements, the largest hurdle of which is likely whether the hashtag is devoid of distinctive character. From a legal perspective, what's happening is that the ‘#’ is being ignored, and the remainder of the text is being assessed for registrability. This means that where the hashtag features a well-known house mark, for instance in #shareacoke, it should have no difficulties, but where it's perhaps more prosaic, like #readthis, then it's much more likely to struggle. Of course, the other side to this coin is the goods and services applied for, which could improve or weaken the chances in each case.”
So, from a trade mark perspective, the inclusion of the ‘#’ at the start of the hashtag is almost irrelevant, and any infringement assessment will be between the initial brand and the one that follows – regardless of which is a hashtag.
“Now there are other important points to think about though too,” Winckworth continues. “First, hashtags are flighty things, and often evaporate within weeks, if not days. This means that even if you have the foresight and spend the money protecting them by a trade mark registration, trying to enforce that trade mark is going to seem wildly expensive, particularly if it's after the event. Secondly, you have to think about who is using your hashtag, and where they are in the world. If they are an individual, then even if you wanted to risk the PR backlash, their use may well not be ‘use in the course of trade’, and so not infringement anyway.”
Furthermore, Winckworth points out that finding where that person is could be expensive, and chasing them in overseas jurisdictions requires very deep pockets.
“If on the other hand the user is a competitor in your jurisdiction, then commercially at least you might want to take some sort of action, but again, is the legal route the best option? I doubt it. For a fraction of the price, I bet your PR team come up with a witty way of firing a shot back at them, which both wins over consumers and makes the competitor warier next time,” Winckworth concludes.
In summary, hashtags are an absolute must when it comes to social media but, as with everything, they have to be used wisely. Brands should get involved in conversations, by all means – that’s the point of the hashtag – but only when they are relevant and the brand can add value. When using for their own campaigns they need to be super careful and think one step ahead as to what the public response could be.
Hogan Lovells’ Winckworth sums up: “The success of the hashtag lies in its simplicity and ability to garner rapid engagement. For a brand, those are of course its risks too. A degree of brand hijacking is to be expected – and could even be spun to your advantage - but careful management of any response is the key to finding that line.”