The Fashion Law Exclusive - NYC-based designer Zana Bayne, who is known for her hand-crafted leather harnesses, is pretty well known. Her designs have been spotted on everyone from Beyonce to Britney. She has collaborated with Prabal Gurung for quite a few of his collections, most recently: Spring/Summer 2014. Her accessories have graced the pages of various Vogue, Elle, and Harper's Bazaar magazines - just to name a few. And now, (somewhat unsurprisingly because of her widespread success), she's being copied. The brand at issue is Leather Moskow, a Russian "leather showroom," which has posted an array of Zana Bayne lookalikes to its Instagram. While this would otherwise be just another case of copying, Leather Moskow has taken things one step further and is posting images (see one below) complete with Zana Bayne hashtags.
Bayne, who launched her collection in 2010 and stocks in the U.S. and abroad, has taken to her own Instagram page to fight the fakes, sharing an image of one of Leather Moskow's creations and the following caption: "Some tacky knockoff company called @leather_moskow keeps tagging their pics with #zanabayne to gain followers, which totally sucks! If you own or have posted a REAL ZB piece (or have posted a photo of the collection) please tag it with #zanabayne to knock the spam photos out!"
So, what recourses, if any, does Bayne have? Well, it appears that she doesn't have many. First of all, you can’t “own” a hashtag. That's just not how it works. However, there is more at issue here than a generic hashtag, because the "ZanaBayne" hashtag includes Bayne's business name and this usually implies a trademarked names. Leather Moskow's use of the hashtag in this case seems to invoke the exact function of a trademark: to indicate the source of origin of a product (although deceptively in this case). But because the proliferation of social media continues to stretch the boundaries of the law and its definitions, much of the governing case law has not been developed yet. However, we do know this: Businesses have begun trademarking their hashtags and according to Lexis, they only need to register hashtag applications in a particular class of products or services (rather than in the class for online forums and communications). Thus, if you have a trademark, you have a trademark that extends to hashtags and you have a potential trademark infringement lawsuit.
Unfortunately for Bayne, trademark law is not on her side for a couple reasons. 1- She doesn't have a federally registered trademark, and so, the chance that she has registered her mark internationally is slim. 2 - While she does, however, have common law trademark rights, because Leather Moskow is operating largely (and probably, exclusively) in Russia, I'm not sure how effective common law rights would be, as they have a geographic limitation and only extend to the geographic area in which the mark is used. This is usually categorized by state. As far as I know, Bayne doesn't stock in Russia and so, common law trademark seems to be out of the question, as well.
The saving grace for Bayne may be the Intellectual Property Policies that Facebook, Twitter and Instagram have that enable you to report unauthorized use. For instance, Twitter's policy states: "Using a company or business name, logo, or other trademark-protected materials in a manner that may mislead or confuse others with regard to its brand or business affiliation may be considered a trademark policy violation." So, Bayne, file a trademark application and report away! As for everyone else, don't buy Zana Bayne products from unauthorized sources. Sou can shop the real thing here.