The United States Olympic Committee (USOC) has been using legal bullying tactics to try and prevent companies that aren’t official sponsors of the Games from using “official” Twitter hashtags such as #TeamUSA and #Rio2016.
Over the last few weeks, the USOC has sent letters to companies that sponsor athletes but don’t have a commercial relationship with the USOC or the International Olympic Committee, warning them against stealing intellectual property.
One of these letters, written by USOC chief marketing officer Lisa Baird and obtained by ESPN, states: “Commercial entities may not post about the Trials or Games on their corporate social media accounts. This restriction includes the use of USOC’s trademarks in hashtags such as #Rio2016 or #TeamUSA.”
The mean-spirited approach is designed to protect the cash-cow sponsors – such as Coca Cola, McDonald’s, GE, P&G, Visa and Samsung – who fork out for marketing presence at the event.
It’s been possible to trademark hashtags in the US since 2013, but intellectual property lawyers like Mark Terry say that the USOC is wrong to try to apply the law to those tweeting hashtags. “The USOC is alleging that commercial entities are using these hashtags and that’s trademark infringement,” Terry told the Guardian. “I think it’s completely bogus.”
“Trademark infringement occurs when another party uses a trademark and confuses the public as to the source of a product or service that’s being used in commerce. That’s not what happens when you use a hashtag. I’m not selling a product or service, I’m just making statements on an open forum. How else do you indicate you are talking about the Rio 2016 Olympics without saying #Rio2016?”
The USOC could have a trademark case if a company was pretending to be a headline sponsor when it fact it wasn’t, but most uses of these hashtags appear to be companies wishing athletes luck on Twitter.
The same letter sent by the USOC reminds companies (except for those involved in news media) that they can’t reference any Olympic results or share or repost anything from the official Olympic account.
This is where the USOC is wrong. As Timothy Geigner at Techdirt points out, there is no applicable part of trademark law that applies 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.
Much of this silliness comes down to Rule 40 of the Olympic Charter. In previous Olympics, the rule barred athletes from tweeting about non-official sponsors for a month around the Games. And non-sponsors weren’t allowed to feature Olympic athletes that they had sponsorship deals with in their ads during that time.
In 2015, Rule 40 was relaxed ever-so-slightly to allow athletes to appear in generic advertising that doesn’t explicitly mention the games or use any Olympic IP, which includes terms such as “Rio”, “medal”, “performance”, “victory” and “gold”.
Sportswear brand Oiselle was contacted by the USOC when it used a photo of athlete Kate Grace, who the company sponsors, after she won the 800 metres at Olympic trials.
Oiselle CEO Sally Bergen told ESPN that the heavy-handed brand policing was “ridiculous” and that the rules hurt athletes. Companies like Oiselle can’t afford to sponsor athletes if they can’t leverage the relationship in their communications.
The USOC did not respond to a request for comment.