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Comment by xg15 | Hacker News Reader

Note though that they only claim "marketing and advertising" for the hashtag [1]. They don't deny anyone from using it in an ordinary Twitter discussion.

So all the people that now try to invoke the streisand effect against them are not even touching their claim, however valid or invalid or may be. If anything, they make the hashtag more valuable for advertisers.

This reminds me of incidents in the past were colors (some special shade of magenta, Deutsche Telekom) or letters (greek alpha, Canon) were trademarked, apparently without much discussion. As I understood it, the reason was that a trademark does not forbid general use by the public. It "only" forbids using it as brand identifiers and for advertising.

Whether hashtags can actually be trademarked is of course a different question. But I don't see how it would be more crazy than trademarking a color.

[1] https://twitter.com/EdmondActive/status/761406212122431488

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A trademark is a source identifier that is intended to prevent consumer confusion as to the source of a particular good or service. An average consumer will see the mark "McDonalds" on a fast food restaurant while traveling and assume that it is connected with the "McDonalds" in their hometown, that they can expect the same menu and quality of food, etc. It prevents the confusion that would be caused by 10 different "McDonalds", each varying in food and/or service quality.

In my view, a hashtag DOES NOT identify a source. It merely identifies a topic. The @EdmondActive is the source identifier. Companies AND the USPTO are not well informed on topics such as this.

Think about color for a moment. If you see a brown cargo van, do you immediately think of UPS? It is likely. When you see magenta in the realm of wireless carriers, do you immediately assume it is in connection with T-Mobile? In lesser known niche markets, the color of a product is even more identifiable and, thus, protectable.

If I were to launch a parcel delivery company, use brown cargo trucks, and clothe my drivers in brown uniforms, consumers would likely confuse my delivery company for UPS, and I would be freeriding on the goodwill that they have created with consumers.

Hence, colors are rightfully protected. Hashtags should not be.

Additionally, I believe trademarks are only valid within the same type of business. The UPS brown would not be protected outside delivery services.

Yep. The trademark litmus test is whether or not there is a "likelihood of confusion" with the business that owns/claims said trademark. So if I was to create and sell a t-shirt with, say, a photo of Mickey Mouse on it, Disney could sue me and claim I was infringing upon their trademark (the mouse), and causing customers to think that my shirts were from Disney.

So it doesn't have to be within the same type of business - it just has to be likely to cause confusion.

(In the case of UPS brown, it would make sense that it can't be used by another delivery service on their trucks, given how prominent it is to the UPS brand. But for a grocery store, for instance, that color wouldn't cause confusion.)

Why wouldn't they be able to trademark "#Rio2016"? Just like with Apple computer, Apple Music, and the apple farm down the road, #Rio2016 should still be available for other uses. You just can't try to confuse people into thinking you sponsor the Olympics with it.

Their claim isn't important at this point. Invoking the Streisand effect by that tone-deaf tweet has just driven its marketing value into the toilet by way of negative association and associated shitposting.

So what if they're "right"? They still lost.

A friend of mine always had a great saying: "You are dead right but you are dead."

Every discussion can be turn into a meta discussion, and good advertisers know that. This is one of the reason why "it doesn't matter whether it's good or bad, as long as they're talking about you"...

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