• Mehr als 3 Millionen Wörter Inhalt
  • |
  • info@itmedialaw.com
  • |
  • Tel: 03322 5078053
Rechtsanwalt Marian Härtel - ITMediaLaw

No products in the cart.

  • en English
  • de Deutsch
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Kurzberatung
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Rechtsanwalt Marian Härtel - ITMediaLaw

#BettercallMarian vs. Better Call Saul: When does a hashtag become a trademark infringement?

1. December 2023
in Law on the Internet
Reading Time: 5 mins read
0 0
A A
0
bettercallmarian vs better call saul wann wird ein hashtag zur markenverletzung
Key Facts
  • The use of hashtags can lead to trademark infringements if a protected term is included.
  • Trademark owners have the exclusive right to use their trademark and to prohibit third parties from using it.
  • The likelihood of confusion is central to trademark law and is critical when using hashtags.
  • Commercial use of a hashtag means special caution for influencers and companies.
  • It is advisable to carry out a legal check or obtain the consent of the trademark owner before using protected terms.
  • Trademark protection arises through registration with the DPMA.
  • Trademarked hashtags may result in warnings or claims for damages.

In my latest LinkedIn post, which you can find here, I have published the second video in my series with 1Pitch on influencers and the importance of KPIs in influencer contracts. I chose the hashtag #BettercallMarian, a playful reference to the well-known series “Better Call Saul”. This creative approach leads us to an important legal question: when can the use of a hashtag constitute trademark infringement?

Content Hide
1. Hashtags and trademark law
1.1. #BettercallMarian: A risk?
1.2. Commercial reference as a key factor
2. Trademark law 1×1: Who is entitled to protection?
3. When does a harmless hashtag become a legal risk?
3.1. Author: Marian Härtel

Hashtags and trademark law

The use of a hashtag that contains a term protected by trademark law can be relevant under trademark law and should therefore be used with caution. As soon as a term is registered as a trademark, it enjoys extensive protection. This means that the trademark owner has the exclusive right to use his trademark and to prohibit others from using it, especially if this could result in a likelihood of confusion with the trademark owner’s goods or services.

This rule applies not only to the obvious use of the trademark in advertising or on products, but also extends to the seemingly more innocuous use on social media, including use as a hashtag under a social media post. Depending on the context, the use of a trademarked hashtag can be seen as an attempt to profit from the brand’s fame and reputation or to establish an association with it, which may constitute trademark infringement.

When selecting hashtags for marketing or communication purposes in social media, it is therefore important to carefully check whether they contain terms protected by trademark law. This applies in particular to companies and influencers who frequently refer to brands in their posts. Unauthorized use can lead to legal consequences such as warnings, injunctive relief and claims for damages. Therefore, if in doubt, it is advisable to carry out a legal check or obtain the consent of the trademark owner before using a trademark-protected term as a hashtag.

#BettercallMarian: A risk?

With #BettercallMarian, one could argue that the hashtag is a reference to “Better Call Saul”. However, the question is whether this allusion is sufficient to constitute a trademark infringement. The degree of similarity, the context of use and the recognition of the trademark are decisive here.

Commercial reference as a key factor

A decisive factor in assessing the relevance of a hashtag under trademark law is the commercial reference of the publication. This aspect is becoming particularly important in the world of social media, where the boundaries between private and commercial use are often blurred. Special care must be taken with a public, commercially used account, as is often the case with influencers, companies and other professional actors.

The use of a brand name in a hashtag for the purpose of increasing product sales, promoting a service or increasing brand awareness without the consent of the trademark owner may constitute an infringement. This applies in particular if the hashtag is used in a context that suggests a commercial intention or if it is used in a way that implies an official connection, partnership or support by the brand owner.

In addition, the use of a trademarked hashtag in a commercial context can also be misleading if it gives the public the impression that there is a connection between the post and the trademark, which in turn increases the likelihood of confusion. This can not only lead to legal consequences such as warnings and claims for damages, but can also affect trust and credibility among followers and customers.

It is therefore essential for influencers and companies to draw a clear line between personal expression of opinion and commercial advertising and to carefully check whether permission is required when using hashtags that contain brand names. In cases where there is uncertainty, it is advisable to seek legal advice or seek the trademark owner’s consent directly in order to avoid potential infringements.

Trademark law 1×1: Who is entitled to protection?

Trademark owners have the exclusive right to use their trademark and to prohibit third parties from using their trademark if this is likely to give rise to a likelihood of confusion. This right allows trademark owners to maintain the integrity of their trademark and ensure that it is not diluted or damaged by unauthorized or misleading uses. The likelihood of confusion is a central aspect of trademark law, as it concerns the likelihood that the public could gain the impression that there is a connection between two different products or services if both are offered under similar trademarks.

However, trademark protection does not arise automatically. In order to obtain this protection, the trademark must be applied for and registered with the German Patent and Trademark Office (DPMA). Registering a trademark with the DPMA gives the trademark owner the exclusive right to use the trademark for the registered goods and services and to prohibit others from using this trademark in a commercial context. This also includes the use of the brand in advertising, on products, in business names or as part of a hashtag in social media.

It is important to note that trademark protection is territorially limited. A trademark registered with the DPMA offers protection in Germany, but not automatically in other countries. For international protection, trademark owners must file separate applications in other countries or regions or use the Madrid system for the international registration of trademarks.

In addition, the trademark must have distinctive character and must not be descriptive of the goods or services for which it is to be registered. Trademarks that use generic terms or common names may be rejected because they cannot serve as unique identifiers for a specific company or product.

Overall, registering a trademark with the DPMA provides an important legal basis for the protection and enforcement of trademark rights, both in traditional business transactions and in the digital world of social media.

When does a harmless hashtag become a legal risk?

The use of hashtags in itself is not illegal and is common practice in social networks. They are used to categorize content, improve findability and participate in current discussions. However, the situation changes fundamentally if a hashtag contains a registered trademark or can be confused with one. In such cases, the use of the hashtag may be considered an unauthorized use of the trademark, especially if it is in the course of trade and has the potential to mislead consumers or create the impression of an association or endorsement by the trademark owner.

An infringement of trademark rights through the use of such a hashtag can quickly lead to legal consequences. This can include warning letters from the trademark owner requesting the infringer to stop using the hashtag. In addition, claims for damages can be asserted, in particular if the use of the hashtag has caused financial damage to the trademark owner or if the unauthorized use of the trademark has led to a profit for the infringer.

In some cases, the unlawful use of a trademarked hashtag can also lead to injunctions requiring the permanent cessation of the use of the hashtag. This can become particularly relevant if the infringer does not respond to a warning or repeatedly infringes the trademark rights.

It is therefore important for social media users, especially companies and influencers, to be aware of the potential trademark implications associated with the use of hashtags. Careful examination and, if necessary, legal advice can help to minimize the risk of unintentional trademark infringement.

 

Marian Härtel
Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.

Tags: AdvertisingBeratungBrandsConsumerGermanyInfluencerLinkedInmarketingMediaPatentRegistrationrightRiskserviceTrademarksWarning

Weitere spannende Blogposts

Home office: going to the toilet not an occupational accident

Twitter account needs approval of works council
7. November 2022

Especially in IT law or marketing agencies and similar companies, home office is quite popular. But until something like a...

Read moreDetails

Defend yourself against IGD warnings?

LG Munich: Data protection consent on dating platform
7. November 2022

Actually, the behaviors when you receive a warning under competition law are always the same. A summary can be found...

Read moreDetails

Smart contract implementation in traditional contracts

Smart contract implementation in traditional contracts
10. October 2024

The integration of smart contracts into traditional contract structures opens up fascinating opportunities for blockchain start-ups, but also poses complex...

Read moreDetails

The legal nature of license keys on the blockchain

The legal nature of license keys on the blockchain
17. May 2024

License keys have long been used in the software industry to control and monetize the use of programs. The purchaser...

Read moreDetails

Electronic invoicing from 2025: What companies need to know

Electronic invoicing from 2025: What companies need to know
21. December 2023

From 2025, electronic invoicing will be mandatory in the B2B sector in Germany. This change, embedded in the Growth Opportunities...

Read moreDetails

Fortnite Fan article: Attention warning danger!

Online retailer: Notice of warranty of defects
30. November 2018

Currently, I can only warn against offering unauthorized fan items from Fortnite, the manufacturer Epic Games, such as the replica...

Read moreDetails

Rental of virtual land is subject to sales tax

Rental of virtual land is subject to sales tax
7. November 2022

The Cologne Fiscal Court has ruled that the purchase and sale of virtual land in a computer game is subject...

Read moreDetails

“Gaffer” photos and upskirting soon a criminal offense

13. November 2019

The Federal Cabinet today approved the draft law on the improvement of the protection of privacy in image recordings, presented...

Read moreDetails

Excessive and unjustified warning does not lead to liability of the warning party

Adblock II decision: Reason is there
7. November 2022

The BGH has made an interesting judgment, which I would like to leave simply once in the with the guiding...

Read moreDetails
Trading business

Trading business

1. July 2023

Introduction The term "commercial transaction" is used both in colloquial language and in a legal context. In this article, we...

Read moreDetails
Culpa in contrahendo

Culpa in contrahendo

16. October 2024
Sole proprietor / sole proprietorship

Work types

10. November 2024

Legal issues for start-ups: A comprehensive guide to founding, life cycle and investments

15. December 2024
Notice of dispute

Notice of dispute

27. June 2023

Podcast Folgen

da884f9e2769f2f96d6b74255be62c27

The role of the IT lawyer

5. September 2024

In this exciting podcast episode, we delve into the fascinating world of IT start-ups and find out why an experienced...

d5ab3414c7c4a7a5040c3c3c60451c44

The metaverse – legal challenges in virtual worlds

26. September 2024

In this fascinating episode, we dive deep into the legal aspects of the metaverse. As a lawyer and tech enthusiast,...

75df8eaa33cd7d3975a96b022c65c6e4

Life as an IT lawyer, work-life balance, family and my career

26. September 2024

In this captivating episode of my IT Medialaw podcast, I, Marian Härtel, share my personal journey as a passionate IT...

d00527fd01b1f807a4f80c0f202069e7

Legal basics for startup founders – how to start on the safe side!

9. November 2024

In this episode of the Itmedialaw podcast, lawyer and entrepreneur Marian Härtel takes you on a journey through the legal...

  • Privacy policy
  • Imprint
  • Contact
  • About lawyer Marian Härtel
Marian Härtel, Rathenaustr. 58a, 14612 Falkensee, info@itmedialaw.com

Marian Härtel - Rechtsanwalt für IT-Recht, Medienrecht und Startups, mit einem Fokus auf innovative Geschäftsmodelle, Games, KI und Finanzierungsberatung.

Welcome Back!

Login to your account below

Forgotten Password? Sign Up

Create New Account!

Fill the forms below to register

All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
  • en English
  • de Deutsch
Kostenlose Kurzberatung