#JoinTheConversation: The Evolving Legal Landscape of Using Hashtags in Sport

Abstract

As sport properties and brands leverage the use of hashtags to expand their share of voice and audiences, they also face a host of emerging legal issues at the nexus of social media and intellectual property laws. This article examines the current potential conflict between the courts and the United States Patent and Trademark Office (USPTO) regarding the legal status of hashtags as trademarks, which provides the backdrop discussion of sport properties' approaches to potentially infringing use of hashtags in the context of ambush marketing. The Federal Trade Commission has also initiated regulatory efforts aimed at hashtag-based promotions. Analysis of significant cases and application of a typology of hashtags to sport industry examples provides guidance to sport organizations. While typically favoring strict enforcement in matters involving intellectual property, the risk in stifling conversations stimulated by hashtags may call for more innovative tactics to achieve brand protection and consumer protection goals.

Information-Sharing Behaviors Among Sports Fans Using #Hashtags

“…A hashtag refers to a specific keyword or key phrase preceded by the symbol #, which classifies the accompanying texts (McKelvey & Grady, 2017). Hashtags enable social media users to avoid surplus information and easily obtain timely and useful details.…”

Interference effects in competitive sponsorship clutter

“…The findings of this study are relevant in the broad context of the multiplication and transformation of ambush marketing, both on‐field and via social media (McKelvey & Grady, ). When faced with competitive exposure, managers of sponsoring brands can implement defensive strategies.…”

Exploring newsjacking as social media–based ambush marketing

“…However, to date ambush scholarship has yet to fully appreciate or incorporate social media marketing, a significant limitation of the extant ambush literature; scant analysis of social ambushing's presence, implications or strategy exists. Chanavat and Desbordes (2014) examination of social ambushing during the 2012 London Summer Olympic Games and Epstein's (2014) and McKelvey and Grady (2017) legal analyses of social media ambushing at the 2014 Sochi Winter Olympic Games offered preliminary investigations into social media ambush marketing, yet these discussions have largely been limited to the regulatory opportunities and efforts made by rights holders to restrict ambushing by brands online. Most recently, Burton (2019) provided an examination of consumer sentiment towards social ambushing within the context of the 2018 FIFA World Cup, affording a first in-depth exploration of social ambushing's rise and effects.…”

“…Taking an exploratory approach, the study examines social ambushing's applications, modality and dimensionality, seeking to examine to what extent brands co-opt official event hashtags as a means of engaging in ambush marketing and what forms or types of ambush campaign are prevalent amongst social ambush attempts. In light of the limitations of contemporary ambush research and rights holders' difficulty in restricting online marketing activities and enforcing traditional counter-ambush marketing protections (McKelvey and Grady, 2017), expanding upon our understanding of social ambushing is imperative. The present research thus seeks to contribute to the extant sponsorship and social media literatures.…”