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Due to trademarks I cannot call my new company AppleComputers or CocaColaBeverages (obviously).

What if I start using #AppleComputers hashtag in my tweets or posts on Instagram?

In other words: Is using a #hashtag of a trademark infringement?

I think that this area of law is new and there might not be many precedents...


Bonus question: Does the intention matter? What if I make it clear that I'm not associated with Apple? Even if in my mind I make it clear, who decides (Judge, Jury, Attorney, Prosecutor) whether it was clear enough?


EDIT / UPDATE: An example (just made it out) might be Greenpeace using #StopShell #StopExxon #StopBP #StopFossilFuels... My general question is use of the hashtag in social media channels. Domain / website can be seized but the hashtag will prevail...

(the concept of creating resilient channel of communication)

  • If you're not selling Apple products, and nobody would think that you are, for example if you're just complaining about the company or its products, then there is no trademark infringement if you use the company's trademarks. A company cannot use trademark protection to prevent you from saying negative things about the company. This principle predates the invention of hashtags, and continues to apply since they were invented. – phoog Dec 2 '16 at 4:16
  • @phoog - your comment qualifies as an answer. I also provided an example... – Michael Freeman Dec 2 '16 at 21:31
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This article summarizes a number of relevant cases. The underlying issue is that trademark protection does not give a person absolute ownership of certain words, it restricts how that may be used in a commercial context. If you were to start tweeting "Buy great computers from me here: #AppleComputers lulz!!" then there would be a reasonable case that readers could think you were selling Apple Computers, which could confuse the poor dears. There is this thing called the "Rogers test", from Rogers v. Grimaldi, 875 F.2d 994 which essentially says that in an expressive work, you can't use a trademark in a way that has "no artistic relevance to the underlying work" or if it "explicitly misleads as to the source or the content": that's a lesser restriction than the "confusion" test, which is the standard commercial speech test. (It must be pointed out that all of the test cases where "fair use" was found are in fact varieties of commercial speech, such as a movie, various publishing companies -- but the typical (?) social media use of hashtag is pure personal expression).

As for "who decides", well, The Law decides; this is embodied in a set of instructions read and somewhat selected by the judge and somewhat selected by his superiors; then the jurors try to understand what that means and apply it to the testimony, and answer a bunch of questions culminating in a verdict. And then is someone is unhappy, they can sue on some basis, so another bunch of judges get to make the final determination (or they could decide to avoid the case).

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