#YourBrand in a Competitor’s Post: When Hashtags Containing a Trademark Cross the Line into Infringement — and How Brand Owners Should Monitor Them

A hashtag is the cheapest advertising a business can buy. Type a pound sign, add a word, and the post is indexed into every search for that word on Instagram, TikTok, X, Facebook, LinkedIn, YouTube, Pinterest, and more. When the word is a competitor’s trademark, the post is indexed into every search for the competitor. That is precisely why competitors do it—and why brand owners ask us, with increasing frequency, whether they can stop it.

The answer, as with most questions about the use of a trademark online, depends on what the consumer sees and what the consumer is led to believe. Courts in several circuits have now addressed hashtag use of a competitor’s mark, and their decisions fall on both sides of the line. The Eleventh Circuit has not decided a hashtag case as such, but its recent decision in Deltona Transformer Corp. v. The NOCO Company, together with its earlier metatag decision and the Middle District of Florida’s landmark PODS v. U-Haul verdict, supply the framework a Florida court would apply.

This post summarizes the hashtag cases, explains how the Eleventh Circuit’s precedent maps onto them, and provides detailed recommendations for brand owners on monitoring competitor hashtag use and deciding when to act. It updates and expands our June 2024 entry on hashtag infringement. For background on our trademark practice, see Trademark Matters; for enforcement, see Litigation & Enforcement.

What Is a Hashtag (Legally)?

A hashtag serves two functions at once. It is both a search and categorization tool. First, the platform treats the tagged term as metadata and returns the post to anyone searching or browsing that term. Second, it is visible text: unlike a metatag or a purchased keyword, the hashtag appears in the post itself, where the consumer reads it as part of the message. That dual character is why the case law is divided. Courts that focus on the first function tend to treat hashtag use of a competitor’s mark as descriptive, informational or nominative—a way of saying “this post is relevant to searches about X.” Courts that focus on the second function ask the ordinary trademark question: does this visible use of the mark, in this context, suggest to a reasonable consumer that the poster’s goods or services come from, or are affiliated with or approved by, the mark’s owner?

The Patent and Trademark Office’s position, set out in Section 1202.18 of the Trademark Manual of Examining Procedure, reflects the first view for registration purposes. The Office takes the position that “the hash symbol and the wording HASHTAG do not provide any source-indicating function because they merely facilitate categorization and searching within online social media,” so that “#SKATER” for skateboards is as descriptive as “skater” alone, and a hashtag is registrable only if the underlying term functions as a mark. That guidance concerns whether a hashtag can be a trademark. It does not answer the different question addressed here—whether using someone else’s trademark as a hashtag can infringe it—but defendants routinely cite it for the proposition that hashtags are search tools rather than source identifiers.

The Hashtag Cases

Five district-court decisions, decided between 2015 and 2021, define the current state of the law. None is binding in Florida, but together they show where courts draw the line.

Eksouzian v. Albanese (C.D. Cal. 2015) — hashtags as “merely descriptive devices”

Two makers of compact vaporizer pens had settled an earlier dispute with an agreement that barred the plaintiffs from using the word CLOUD as a unitary mark in close proximity to “pen.” When the plaintiffs posted on Instagram with the hashtag #cloudpen, the defendants claimed a breach. The court disagreed, reasoning that “hashtags are merely descriptive devices, not trademarks, unitary or otherwise, in and of themselves,” and that #cloudpen was a functional tool for directing users to the plaintiffs’ content rather than a use of CLOUD PEN as a mark. The decision was a contract case, and its most-quoted sentence has been read more broadly than the facts warrant, but it remains the leading authority for the proposition that a hashtag is not, by itself, trademark use.

Fraternity Collection, LLC v. Fargnoli (S.D. Miss. 2015) — hashtags can deceive

A clothing company sued a former designer who, after their relationship ended, promoted her own competing line on Instagram using #fratcollection and #fraternitycollection. On the defendant’s motion to dismiss, the court held that “hashtagging a competitor’s name or product in social media posts could, in certain circumstances, deceive consumers,” and allowed the Lanham Act false-advertising claim to proceed. The decision is the earliest recognition that a hashtag built from a competitor’s mark, used by a competitor to promote competing goods, states a claim.

TWTB, Inc. v. Rampick (E.D. La. 2016) — the former licensee

A former licensee of the restaurant “Lucy’s Retired Surfers Bar” opened its own restaurant under a new name but kept promoting it on social media with the hashtag #lucysnola. The court found a likelihood of confusion, observing that the defendant was “clearly holding itself out to be the same business” through its social-media promotion, and granted relief. The case is the clearest example of hashtag use that trades directly on the goodwill of the mark: the tag was the only remaining link to the old brand, and it was used precisely to maintain that link.

Public Impact, LLC v. Boston Consulting Group (D. Mass. 2016) — competing services, identical tag

An education consulting firm that owned the registered mark PUBLIC IMPACT sued a much larger consulting firm that launched a “Centre for Public Impact” using the Twitter handle @4PublicImpact and the hashtag #publicimpact. The defendant argued that a hashtag is not use “as a mark.” The court rejected the argument, found the hashtag “almost identical to plaintiff’s mark,” emphasized that the parties offered competing services to overlapping customers, and issued a preliminary injunction. The decision confirms that a defendant cannot avoid the likelihood-of-confusion analysis simply by pointing out that the mark appeared after a pound sign.

Align Technology v. Strauss Diamond Instruments (N.D. Cal. 2019) — the limits of nominative use

The most detailed hashtag opinion arose from dental equipment. Align makes the iTero scanner and the Invisalign aligner system. Strauss sold an after-market silicone sleeve compatible with the iTero scanner and promoted it on Instagram, Facebook, YouTube and LinkedIn using #itero and #invisalign along with Align’s marks in the post text and Align’s own product photographs. Strauss argued nominative fair use—that it had to name Align’s products to tell customers what its sleeve fit. The court accepted that some reference was necessary but held that the hashtags failed the nominative fair use test on two grounds. First, Strauss used more of the marks than was reasonably necessary: a compatibility statement in the text would have sufficed, and the hashtags added nothing to it. Second, and more fundamentally, the hashtags did not actually describe the compatibility relationship at all—as the court put it, “you can’t read the hashtags and figure out that this product is the sleeve.” Strung together with Strauss’s own promotional tags (#scannersleeve, #dentist), the Align marks simply suggested “a vague association” between Align and the product. The court found a likelihood of confusion under the Ninth Circuit’s Sleekcraft factors and enjoined the use. Align is now the principal authority for the proposition that a hashtag is a poor vehicle for nominative use, because a hashtag by its nature asserts a relationship without explaining it.

Petunia Products v. Rodan + Fields (C.D. Cal. 2021) — the influencer

Though not strictly a hashtag case, Petunia completes the picture. The owner of the mark BROW BOOST sued a cosmetics company and the celebrity influencer it paid to promote “Brow Defining Boost” on her blog and social channels. The court refused to dismiss the direct infringement claim against the influencer personally, reasoning that a paid post is commercial speech and that “paid endorsers are potentially liable under trademark law for the words they choose to say to consumers on behalf of would-be infringers.” For brand owners, the decision means that the influencer who tags a competitor’s post with your mark is a proper defendant. For businesses that use influencers, it means that the hashtags in a sponsored post are the business’s problem and the influencer’s.

What the cases have in common

Read together, the decisions are less inconsistent than they first appear. The courts that found no liability (Eksouzian) involved a party using a tag to describe or index its own goods, with no competitor confusion at issue. The courts that found liability (Fraternity Collection, TWTB, Public Impact, Align) all involved a competitor using the mark owner’s exact mark as a tag to promote competing goods or services to the same customers, in a way that implied a relationship that did not exist. The pound sign is not the deciding factor—the context is.

The Eleventh Circuit and Florida: The Framework a Florida Court Would Apply

Neither the Eleventh Circuit nor any Florida district court has issued a reported decision on hashtag use of a competitor’s mark. Three lines of authority nonetheless make the outcome in this circuit reasonably predictable.

Deltona v. NOCO: visible use is the test

As we discussed in detail in an earlier post, the Eleventh Circuit held in Deltona Transformer Corp. v. The NOCO Company, that purchasing a competitor’s trademark as a search-advertising keyword is not infringement, because the consumer never sees the mark and likelihood of confusion “turns on what the consumer saw on the screen and reasonably believed, given the context.” The same opinion affirmed an infringement verdict, a $12.1 million disgorgement award and a permanent injunction based on the defendant’s use of the mark in the visible text of its ads and product descriptions, holding that the defendant had “impermissibly held itself out … as a seller of battery tenders, rather than a provider of alternatives to battery tenders.”

A hashtag falls squarely on the visible side of that line. It is not a behind-the-scenes keyword. It is text in the post that the consumer reads. Under Deltona, the question a Florida court will ask is whether the hashtag, in the context of the post, holds the poster out as a source of the mark owner’s goods or as affiliated with the owner, or whether it merely identifies the poster’s goods as an alternative. A competitor’s post that says “Tired of overpaying? Our system does everything theirs does for less #YourBrand” is a comparative reference and is likely lawful. However, a competitor’s post that shows its own product with the caption “#YourBrand #YourBrandDeals #YourBrandAlternative” and nothing more is the Align scenario: the tags assert an association without explaining it, and a court applying Deltona is likely to find that the poster has held itself out as connected to the brand. Notably, the Deltona court also held that inserting the mark into Amazon product descriptions—text that consumers might never scroll down to read—was infringing, because the text “on the page” represented that the product was the branded product and because it manipulated the platform’s search results to drive shoppers looking for the plaintiff to the defendant. That reasoning applies with even greater force to a hashtag, which is both on the page and designed to manipulate search.

North American Medical v. Axiom Worldwide: the metatag precedent

Long before Deltona, the Eleventh Circuit addressed invisible use of a competitor’s mark in North American Medical Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211 (11th Cir. 2008). Axiom had placed North American’s registered marks in the metatags of its website, with the result that Google displayed Axiom’s site — with the plaintiff’s marks in the search-result description — when consumers searched for the plaintiff. The court held that metatag use is “use in commerce” because it “support[s] advertising objectives,” and it affirmed the district court’s finding of a likelihood of confusion, emphasizing that the marks appeared in the search-result description consumers actually saw and that the defendant was a direct competitor with no legitimate comparative purpose. The court vacated the preliminary injunction on other grounds, holding that irreparable harm could not be presumed after eBay v. MercExchange. Deltona narrowed Axiom as to purely invisible uses, but Axiom’s core remains intact: where a competitor’s mark is used to generate a search result that the consumer sees and that suggests affiliation, the Eleventh Circuit will treat it as actionable. Hashtags do exactly that.

PODS v. U-Haul: the Florida jury and the generic-use strategy

The Middle District of Florida’s PODS Enterprises, LLC v. U-Haul International, Inc., No. 8:12-cv-01479 is the cautionary tale for any competitor that adopts a brand owner’s mark as if it were the name of the product category. U-Haul used “pod” and “pods” more than 600,000 times across its website and online advertising to describe its U-Box containers. A Tampa jury found willful infringement and awarded $60.7 million, including $45 million in corrective-advertising damages—the largest such award in trademark history—and the district court denied U-Haul’s post-trial motions, 126 F. Supp. 3d 1263 (M.D. Fla. 2015), before the case settled for $41.4 million during the appeal. The hashtag equivalent of U-Haul’s conduct—a competitor tagging every post about its product with the brand owner’s mark as though the mark were a generic term—is the same strategy in a different medium, and a Florida jury has already shown how it regards that strategy.

The Governing Test and the Nominative Use Question

Trademark infringement under the Lanham Act, under Florida’s registration statute (Chapter 495), and under Florida common law is analyzed identically in this circuit, and a Lanham Act violation is a per se violation of the Florida Deceptive and Unfair Trade Practices Act. The court will apply the seven factors restated in FCOA LLC v. Foremost Title & Escrow Services, 57 F.4th 939 (11th Cir. 2023), and in Deltona: strength of the mark, similarity of the marks, similarity of the goods, similarity of trade channels and customers, similarity of advertising media, intent, and actual confusion.

In a hashtag case, several of those factors will almost always favor the brand owner. The marks are identical (a hashtag reproduces the mark exactly), the advertising medium is identical (the same platform), and where the defendant is a competitor the goods and customers overlap. Intent is frequently provable from the defendant’s own choice to tag a competitor’s mark rather than a generic term. Actual confusion, such as— comments on the post asking whether the product is the brand owner’s, direct messages, and misdirected inquiries, is often visible on the post itself.

The Eleventh Circuit has not formally adopted the Ninth Circuit’s nominative fair use test, though district courts in Florida regularly consider its elements (whether the product is readily identifiable without the mark, whether only so much of the mark was used as reasonably necessary, and whether the use suggests sponsorship or endorsement) under the rubric of likelihood of confusion. Align shows how those elements apply to hashtags: because a hashtag conveys a bare association and no explanation, it will rarely satisfy the second and third elements when a competitor uses it. A defendant with a legitimate need to reference the mark (a reseller, a compatible-accessory maker, a repair service) is far better served by a plain-text statement of the relationship (“fits iTero scanners”; “authorized reseller of X”) than by a hashtag.

Recommendations for Brand Owners: Monitoring and Enforcing Against Hashtag Use

Hashtag monitoring differs from traditional trademark watching in three ways: the volume is enormous, most of the uses are lawful or even beneficial, and the evidence disappears quickly. The program below is designed for those conditions.

1. Decide what you are looking for before you look

Not every use of your mark in a hashtag is a problem, and a program that flags every mention will be abandoned within a month. Classify uses into tiers at the outset. Tier one—customers, fans and reviewers tagging your products—is lawful and valuable. It should be monitored for brand-sentiment and customer-service reasons but not for enforcement. Tier two—authorized resellers, distributors and compatible-product makers making truthful references—is generally lawful and should be governed by your channel agreements and brand guidelines rather than by demand letters. Tier three—competitors, unauthorized sellers, counterfeiters and paid influencers using your mark to promote competing or unauthorized goods—is the enforcement target. The classification will drive the search queries, the review workflow and the response.

2. Build the search set

The monitored terms should include: the mark itself as a single-word hashtag (#YourBrand), the mark combined with common modifiers (#YourBrandDeals, #YourBrandDupe, #YourBrandAlternative, #YourBrandStyle, #YourBrandVsTheirBrand); your product names and model designations, your slogans and campaign hashtags, common misspellings and hashtag-friendly variants (no spaces, no punctuation, singular and plural), and your competitors’ names combined with your mark. The “dupe” and “alternative” combinations are the most productive, because they are where competitors and unauthorized sellers concentrate.

3. Use the platforms’ own tools and a listening service

• Native search. Each platform indexes hashtags and allows searching by tag. Instagram, TikTok and X also show “related” tags, which surface the modifier combinations above. Save the searches and review them on a schedule—weekly for active brands, daily during launches and sales events.
• Social-listening platforms. Services such as Brandwatch, Sprout Social, Talkwalker, Meltwater and Hootsuite monitor hashtags across platforms continuously, filter by account type and follower count, and archive posts with timestamps. For a brand of any size these are the practical backbone of a monitoring program, and their archived captures are admissible evidence with a proper foundation.
• Platform brand-protection programs. Meta’s Brand Rights Protection tool (for Facebook and Instagram) allows a registered mark owner to search ads, posts and accounts for its marks and to submit reports in bulk. TikTok, X, YouTube and Pinterest each maintain an intellectual-property reporting process. Enrollment generally requires a registration, which is one more reason to register the marks that matter.
• Ad libraries. Meta’s Ad Library and TikTok’s Commercial Content Library expose the sponsored posts competitors are running, including the hashtags in them. Paid posts are the highest-priority uses because they are unambiguously commercial.

4. Capture evidence immediately and properly

Posts are edited and deleted the moment a demand letter arrives. For every tier-three use, capture the post the day it is found: a full-screen image showing the account name, the caption with the hashtags visible, the date, the engagement counts and—critically—any comments or replies reflecting confusion, the direct URL, a capture of the hashtag search-results page showing the post appearing among your own, and, where the post is an ad, the ad-library record. Use a capture tool that records the URL and timestamp in the image or a forensic service for high-value matters, and keep a log. This record is what will prove the use, its duration and its intent, and—as Deltona shows—duration drives disgorgement.

5. Evaluate each use against the Deltona and Align questions

For each captured use, ask the two questions the cases turn on. First, what does the post say to a consumer who reads it: does it present the poster’s goods as an alternative to yours, or does it present them as yours or as connected with you? Second, if the poster claims a legitimate reason to reference you, does the hashtag actually communicate that reason, or does it merely assert an association?

A competitor’s product post carrying your mark as a bare tag, a former distributor still tagging your brand, and an unauthorized seller tagging your mark on goods that may be counterfeit all fail both questions and warrant action. A comparison post that names you truthfully, a compatible-accessory post that states the compatibility relationship in words, and a reseller’s post about genuine goods generally do not.

6. Report to the platform first

Platform reporting is fast, free and creates a record of notice. Each platform’s trademark report form asks for the registration number, the infringing content’s URL, and a short explanation. The explanation should say, in a sentence or two, that the account is a competitor using the registered mark to promote competing goods in a manner suggesting affiliation. Platforms are more responsive to reports that identify a sale of competing or counterfeit goods than to reports about commentary, and they will generally not act on truthful comparative references. Track every report and its outcome. A competitor whose posts have been removed and who re-posts the same tags has supplied the pattern of willfulness that supported the permanent injunction in Deltona.

7. Send a demand letter calibrated to the law

A demand letter that overreaches—demanding that a competitor never mention your brand in any post—invites a reply citing Eksouzian and the TMEP, and undermines the letter’s credibility in front of the court that eventually sees it. The letter should instead identify the registrations, reproduce the specific posts and hashtags, explain that the use, in context, holds the poster out as a source of or affiliate of your goods, cite Deltona and Align for the distinction between a truthful comparative reference and a bare associative tag, and demand removal, an accounting of the period of use, and written confirmation that the tags will not be used again. Where the poster is a paid influencer, send the letter to both the influencer and the sponsoring brand. Reserve all rights expressly, and do not “close” the matter on a takedown without stating that the reservation extends to any resumption.

Our Litigation & Enforcement page describes how we approach these letters.

8. Address hashtags in your own contracts and guidelines

Many hashtag problems originate with former partners rather than strangers. Distribution, reseller, licensing, franchise and influencer agreements should specify which hashtags the counterparty may and may not use during the relationship, require the removal of brand hashtags from the counterparty’s accounts and content on termination, and prohibit tagging the brand on competing products. Brand guidelines published to authorized resellers should state the same rules. TWTB—the former licensee that kept using #lucysnola — is the case these provisions are designed to prevent.

9. Register the marks and consider registering the campaign tags

Every platform program and every statutory remedy discussed above depends on federal registration. Beyond the core marks, consider registering campaign or community hashtags that have come to identify your brand (the TMEP permits registration where the underlying term functions as a mark, as the Coca-Cola “#xomtu” campaign demonstrated in a UDRP proceeding), and consider the Florida registration under Chapter 495 for marks used primarily in-state.

Our Trademark Matters page describes our clearance and registration services.

10. When you sue, plead the full set of claims and prove the pattern

A hashtag case in Florida should plead Lanham Act infringement under Section 32 (for registered marks), false designation of origin under Section 43(a)(1)(A), a separately pleaded false-advertising claim under Section 43(a)(1)(B) where the posts make false statements about the goods (Deltona reversed a false advertising verdict for want of a separate count), Florida common law infringement and unfair competition, and FDUTPA for injunctive relief and, where measurable, actual damages. The evidence should be organized to show the pattern over time—the archive of captured posts, the platform reports and takedowns, the demand letters and resumptions—because the pattern is what proves willfulness, supports disgorgement and corrective advertising damages, and justifies an injunction broad enough to reach variant tags. Request an injunction that lists the specific hashtags and their obvious variants, and that carves out truthful comparative statements, so that it survives the overbreadth challenge the Deltona defendant raised and lost.

A Note for Businesses on the Other Side

Because our clients are also competitors, a word on lawful practice. Comparative advertising that names a competitor and compares objectively measurable attributes is lawful and was expressly carved out of the Deltona injunction. A truthful statement that your product is compatible with, or an alternative to, a competitor’s product is lawful. The safest way to make those statements is in words, in the body of the post, not in a hashtag. If a competitor’s mark appears in your hashtags at all, it should appear in a form that conveys the relationship (#CompatibleWithX is defensible in a way that #X alone is not), and your marketing team and your influencers should be instructed accordingly. Every hashtag in a sponsored post is, after Petunia, a statement your business is making to consumers.

Conclusion

Hashtags are not a trademark-free zone, and they are not automatically infringing. The cases that have addressed them—and the Eleventh Circuit’s decision in Deltona on the closely analogous question of visible versus invisible use—converge on a single principle: a competitor may use your mark to tell consumers that its product is an alternative to yours, but it may not use your mark, in a hashtag or anywhere else, to hold itself out as you or as connected with you. Because a hashtag conveys association without explanation, competitors who use one will usually find themselves on the wrong side of that line. Brand owners who monitor systematically, capture evidence promptly, calibrate their demands to the law and build the record of a pattern will be well positioned to enforce — in Florida, before a court that has already shown, in PODS and Deltona, how it regards competitors who appropriate a brand as if it were a category.

If a competitor is using your trademark in its hashtags or social-media advertising, or if you have received a demand concerning your own posts, our attorneys can evaluate the use and recommend a response. Please visit our Trademark Matters and Litigation & Enforcement pages, or contact us at 305-374-8303.