William & Mary Bill of Rights Journal
Abstract
This Article proceeds in four Parts. Part I provides a basic overview of trademark law and brand protection. It explains the key components of the Lanham Act, the central federal legislation in this area—including the two federal causes of action, trademark infringement and trademark dilution—and explores the law’s role in brand protection. Next, Part II discusses the area of social media and brand promotion. It begins with examining the rise of social media and the emergence of hashtags, in addition to trademarks used within hashtags and the registration of hashtags by the United States Patent Trademark Office (USPTO) as well as objections to that practice. Then, the discussion moves to the effect of hashtags on social media, with a focus on both the positive and negative impacts on brands of the use of hashtags that include trademarks.
Part III discusses in depth the liability implications of the unauthorized use of such hashtags on social media. First, it provides an analysis of trademark infringement and trademark tarnishment caused by these hashtags, as well as of the possibility of so-called trademark “genericide” through hashtags (whereby the original owner loses protection once a trademark is deemed generic). Second, it examines closely the scope and strength of trademark dilution laws after Jack Daniel’s Properties, Inc. v. VIP Products LLC. Last, it describes some of the limitations and challenges to litigating under the current framework of trademark law when it comes to social media and hashtags. Part IV introduces proposals to bridge the gap under this existing framework. It also discusses how companies can combine trademark law with other tools such as practices related to employment law and training, or product safety measures, to effectively combat reputational damage to brands that may be caused by their employees’ or users’ actions.
This abstract has been taken from the authors' introduction.