Influencers and Trademark Law: When a #Hashtag Can Become Expensive
She has 180,000 Instagram followers, a loyal audience, and regular partnerships with fashion brands. Then one morning, she receives a cease-and-desist letter.
A major luxury brand accuses her of using its name in several posts and hashtags. She is ordered to remove the content, compensate the alleged damage, and faces the threat of trademark infringement proceedings if she fails to comply. Yet the influencer believed she was entitled to discuss products she had purchased herself.
Situations like this are becoming increasingly common. They reflect an ongoing misunderstanding of what trademark law does, and does not, allow on social media.
Contrary to popular belief, the mere fact that a trademark is registered does not mean that any mention of it is prohibited.
A Trademark Does Not Create a Monopoly Over Every Use of the Sign
A trademark owner enjoys exclusive rights in connection with the goods and services covered by the registration. However, those rights are subject to important limitations.
Under Article L. 713-6 of the French Intellectual Property Code, the use of a trademark is permitted where it is necessary to identify the origin of a product or service, provided that such use remains consistent with honest commercial practices.
In other words, merely referring to a trademark is not, in itself, trademark infringement.
An influencer may lawfully mention a brand in order to present a product, publish a review, compare products, or comment on current events. A beauty content creator testing a foundation and identifying the relevant brand does not automatically infringe the trademark owner’s rights.
The issue arises when the use goes beyond a purely descriptive reference.
In practice, legal risk generally arises in three situations:
- where there is a likelihood of confusion regarding the existence of a partnership;
- where the influencer seeks to take unfair advantage of the brand’s reputation;
- or where the use harms the image or functions of the trademark.
The Most Sensitive Situations in Practice
Using a Trademark in a Username or Account Name
Incorporating a well-known trademark into an Instagram, TikTok, or YouTube account name can quickly create ambiguity as to the origin of the account or the existence of an economic connection with the brand.
The risk increases further where the account is monetized, linked to a store, or used to promote commercial services.
In these cases, trademark infringement claims are often combined with actions based on unfair competition or parasitic conduct under French law.
Hashtags: A Grey Area, Not a Lawless One
Hashtags are often perceived as simple indexing tools. Legally, the issue is more nuanced.
Using a trademark in a hashtag may qualify as use “in the course of trade”, particularly where the hashtag is intended to promote a commercial activity or divert traffic associated with a well-known brand.
Conversely, purely descriptive or community-based use will generally remain permissible. Using a trademark to indicate that a content genuinely relates to a brand is not, in principle, sufficient to establish infringement.
Everything therefore depends on the context: the nature of the content, the existence of a commercial activity, ambiguity regarding a partnership, or unauthorized exploitation of the brand’s reputation.
Hidden Advertising and False Partnerships
Trademark law intersects here with consumer protection law.
Since the French Act of 9 June 2023 regulating influencer marketing activities, content creators are required to clearly disclose commercial collaborations and benefits received, and a written contract is mandatory provided that a €1,000 threshold introduced by the Decree of 28 November 2025 is met.
Content suggesting the existence of a non-existent partnership may expose an influencer to claims based on misleading commercial practices, trademark infringement, or parasitic conduct.
In many cases, brands act less to prevent the mention of their name than to avoid the impression that a creator is officially affiliated with or endorsed by them.
Parody, Criticism, and Commercial Disparagement
Freedom of expression remains the governing principle, including on social media. A brand may be criticized, parodied, or mocked. However, the line between permissible criticism and unlawful disparagement remains narrow.
French courts generally accept satire and parody, including in commercial contexts. By contrast, excessive or misleading statements primarily intended to discredit a company’s products or services may give rise to liability.
Humor is not an automatic defense against legal claims.
The Power of Trademark Owners Also Face Limits
In practice, some companies send particularly aggressive cease-and-desist letters in response to uses that are, in fact, lawful.
A trademark owner cannot prevent the resale of authentic goods lawfully placed on the market with its consent. Nor can it prohibit the necessary use of its trademark to identify its own products or services. Trademark law also cannot be used as a blanket tool to suppress criticism.
The principle of exhaustion of rights limits a trademark owner’s ability to control the resale of genuine products. Likewise, criticism does not become unlawful merely because it is unfavorable to the brand.
Some cease-and-desist letters are therefore better understood as pressure tactics than as claims supported by strong legal grounds.
In practice, several precautions significantly reduce exposure:
- Avoid incorporating third-party trademarks into account names
- Clearly disclose commercial partnerships
- Avoid creating ambiguity regarding collaborations
- Distinguish editorial content from promotional content
- And exercise caution when using hashtags associated with well-known brands in a commercial context.
Receiving a cease-and-desist letter does not automatically mean that the claim is well-founded. In these matters, everything depends on the precise context in which the trademark was used, the content published, and the perception created in the mind of the public.
LAZULI Advises Influencers and Trademark Owners
The firm represents both content creators facing cease-and-desist letters or takedown demands and trademark owners seeking to identify and stop unlawful uses of their signs on social media platforms.
Acting on both sides of these disputes provides the firm with a practical understanding of the legal and reputational issues involved.
LAZULI also offers fixed-fee consultations to assess the merits of a cease-and-desist letter, analyze potentially infringing uses, or develop trademark protection strategies tailored to social media activities.
The firm also drafts influencer agreements, whether acting for the brand or the influencer.
Jérémie LEROY-RINGUET, May 2026
