May the 4th be with you: Disney, a hashtag, and a little bit of intellectual property

May 4th is already a significant day for Star Wars, with many fans in lockdown (including this one) thinking about a galaxy far far away. Today appears to be of particular importance with the Skywalker Saga being released on Disney+. But Disney may have tried to go a little too far in its promotion and appeared to be claiming some form of ownership in #MayThe4th. This raises some interesting intellectual property issues on hashtags and trade marks which are worth consideration.

Last week Disney Tweeted:

Celebrate the Saga! Reply with your favourite #StarWars memory and you may see it somewhere special on #MayThe4th.

@Disneyplus 27/05/2020

This was followed up with the further tweet:

By sharing your message with us using #MayThe4th, you agree to our use of the message and your account name in all media and our terms of use here:

@Disneyplus 27/05/2020

These tweets raise interesting questions around the apparent claim by Disney to #MayThe4th, namely whether you own a hashtag? The answer relates to trade marks. It is possible to own a registered trade mark in a hashtag. The relevant issues are whether it is worth it and whether the enforcement is strong enough.

Intellectual Property in #MayThe4th

It there a new hope in registering a hashtag as a trade mark? Is it beneficial for brands to do so?

A registered trade mark is a sign to distinguish the origins of goods from one brand to those of another. Handled solo a hashtag appears to be of little benefit to a brand (or products of the brand) as it will not necessarily act to distinguish any good or service. Only when consistently used with a product or service would it begin to be of use to a brand (much like a traditional trade mark).

Registering a #TradeMark

In the UK, Wyke Farms the UK’s largest independent cheese producer was the first brand to register a TM for #freecheesefriday in the UK.

Similarly, the United States Patent and Trademark Office (USPTO) states:

A mark comprising of or including the hash symbol (#) or the term ‘hashtag’ is registerable as a trademark of service only if it functions as an identifier of the source of the applicant’s goods or services.

So it seems perfectly possible to register a mark if a brand wishes. However, it may be a different story if someone other than Disney tried to register #MayThe 4th. When registering its hashtag as a TM, Wyke Farms was required to provide evidence that the mark had acquired distinctiveness through use (on social media). It would be interesting to see whether any May 4th hashtags would demonstrate acquired distinctiveness in the same way.

Enforcing the mark

Registering a hashtag as a trade mark may offer some protection to a business empire (but only nationally or internationally). If another brand used the mark and attempted to ride on the coat tails of its popularity, which in turn caused confusion relating to its association with holder of the mark then the the empire may strike back with an action for infringement.

However it would be unlikely to offer any protection against anyone else doing the same thing using it in a social context. This would be a key issue as the distinctiveness of the mark could be diluted through social use and lose any value.

This is not the first time that Star Wars has seen some intellectual property action. Those familiar with the ways of copyright will remember the case involving a Stormtrooper helmet and whether it was a sculpture or not. Hopefully a patent application involving a lightsaber is still a few parsecs away.

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