Rio 2016 and the battle over Olympic hashtags
On the eve of Rio 2016, the United States Olympic Committee “declared war” on companies that are not part of the official sponsors of the Olympic Games, warning them not to publish on their social accounts pictures in some way related to the Olympics or containing Olympic logos/brands (such as the five rings) or images linked to the Olympic team of the United States. In addition, the committee also warned companies from using the official terms and hashtags of the Olympic Games and the US Olympic team. In other words, commercial entities may not use the USOC’s trademarks in pictures and tweets using hashtags such as #Rio2016 or #TeamUSA because they would be “non-authorized Olympic-related advertising“.
The warning is mainly directed to companies that sponsor athletes but which are not among the official sponsors of the Rio Olympics. A few days ago we saw a prime example of this imposition when the apparel company Oiselle, sponsor of the Olympic Trials 800 meters’ winner Kate Grace, posted some pictures of her on Instagram. The U.S. Olympic Committee immediately informed Oiselle that the posts – which cointained the words “Rio” and the logo of the Olympic games – “violated USOC trademark guidelines” and requested Oiselle to take down all pictures of Grace and other Oiselle athletes competing at the Trials.
If the pictures’ issue is subject of a detailed discussion (When does a picture become advertising? Is it right to force someone to remove from a photograph logos that infringe trademarks, even if that picture has a completely different purpose?), the USOC’s formal notice concerning the hashtags appears rather extravagant. Since 2013 in the US it has been possible to trademark hashtags, but this does not mean no one else can ever use them. It simply means that hashtags cannot be used inappropriately to sell different products or services, and they cannot be adopted in competitors’ advertising to confuse customers. That is not what happens when a hashtag is simply used on social media to describe an event, even if it is used by a company.
Intellectual property lawyer Mark Terry says that the USOC is wrong to try to apply trademark law to those tweeting hashtags. “How else do you indicate you are talking about the Rio 2016 Olympics without saying #Rio2016?“, he says. To trademark a hashtag – as we saw – is one thing, to claim an exclusive right to use that hashtag is quite another. Moreover the USOC reminded those companies that they cannot mention any Olympic results nor retweet (!!) anything from the official Olympic account. Timothy Geigner from Techdirt argued that “trademark law is not applicable to facts such as sporting results“. Furthermore, “the restrictions on retweeting make absolutely no sense in the context of social media which is designed to be, you know, social“.