Are Hashtags valid Trademarks?

Coca Cola has recently filed in the United States two applications for registration of trademarks concerning the hashtag #cokecanpics and #smilewithacoke.

There seems to be a recent trend on behalf of companies to register a hashtag as a trademark.

Hashtags are the result of combinations of one or more words preceded by the # sign Their spread is linked to their introduction on some social networks (eg. Twitter and Instagram) as a tool to mark keywords and allow users to more easily find a message or content linked to a specific topic and participate in the sharing of ideas. By the time the hashtags have exceeded their technical function and boundaries of social networks in which they were born and have become part of everyday communication of the digital generation. Hence the need for companies to protect their brands or their slogan preceded by the pound.

The possibility of recording a hashtag as a trademark is recently debated by trademark professionals.

Italian law does not place obstacles to register any sign capable of being represented graphically and, as such, to be registered as trademarks. As any other trademark a hashtag can be if it meets the requirements of set by the law.

A hashtag containing a sign identical or similar to a trademark a competitor cannot be protected for likeliness of confusion. On the other hand signs of common use like #softdrink or matching the generic name of a product, cannot validly be register as a trademark.

What happens if a hashtag similar to a trademark is only used  within a social media?
In our view there seems to be no infringement of the exclusive rights of the trademark owner, as long as such use is made for private purposes and not as part of an economic activity. On the other hand, if a hashtag is registered  as a trademark to involve users-consumer in promotional campaigns for a certain product, the registration could become a useful allowing protection against slavish initiatives of competitors.

Uber is a carpooling service provider according to Italian Courts

The court of Genova recently rendered a landmark decision which seems to legitimate Uber’s activities on the Italian Territory. 

The judgment rendered by the small claims Court of Genoa confirms that Uber’s services are not in any way related to an abusive taxi service because while on one hand a taxi is a public transport characterized by payment according to a meter for the use of undifferentiated passengers, Uber is something closer to carpooling.

According to the Court of Genova, Uber is a voluntary car sharing provider which uses a social network to put demand the offer in contact and not an abusive taxi service. Uber’s Italian Country manager commented the decision with the hope for a new and comprehensive legislation in the sector of transport and mobility, taking into account new technologies that in fact it has already changed to the benefit of the community and for greater livability of our cities.

Copyright enforcement for graffiti?

If it sounds novel to apply copyright to graffiti art, that’s because it is: lawyers who work in this area say it’s not clear anyone has ever tried this in court. Copyright law could be extend to art that's on public walls? It very well may.

Anasagasti, a rising star in Miami’s art scene, was the first graffiti artist to seek protection for his work: he hired a lawyer and filed a copyright infringement accusing American Eagle of stealing his work and looking for monetary damages.

Later, a large number of other artists filed suits against various corporations for copyright infringement. One was against the Italian fashion designer Roberto Cavalli for creating clothing, bags, and shoes that supposedly misappropriated a San Francisco street mural as its background print.

All the artists claim their artwork was created legally and registered for copyright.

Actually in the United States the requirements to obtain copyright for visual art are very low, there are only two requirements for an artwork to be eligible for copyright: it must be secured in a fixed medium and it must be original.

The lawsuits affirm that corporations have gone beyond any exception, putting the street art to use for their own commercial purposes. As Anasagasti’s suit argues, “In today’s fashion industry, affiliation with artists bearing such ‘street credibility’ is highly required by retail brands for the cultural reputation and access to the profitable youth demographic that it offers.”

How much is that street credibility worth? Both lawsuits spread some light on how could this value be measured. In Anasagasti vs. American Eagle as well as in the San Francisco artists suing Roberto Cavalli the value has been determined on sales data, including its software that tracks exactly how many customers viewed the ads and subsequently made purchases.

It’s not clear why the defendants wouldn’t have reached out to ask the artists for permission to use their work.  They must have just thought that urban artists aren’t organized and aren’t going to think about copyright protection.

Nothing could be more antithetical from the “street culture” than luxury and glamour.

Seeking copyright protection may sound like the latest evolution of street art away from its outsider origins, but street artists have always pretended greater control over their work. Street artists don’t earn easily with their works,  if corporations take advantages of their works, they deserve to be paid. If somebody's going to profit from this art, copyright may be just the instrument for ensuring that somebody is the artists themselves.

By Francesca Filipo