Hashtag Infringement? The US Olympic Committee’s Improper Attempts to Expand its Trademark RightsAugust 11, 2016
The Olympic Games are supposed to bring together the world’s greatest athletes to compete in a spirit of mutual respect and camaraderie. But the U.S. Olympic Committee, which effectively controls our country’s participation in the Games, has recently been undermining that ethos by asserting legal rights it does not have in an apparent attempt to extort all the sponsorship dollars it can.
A notably non-profit organization chartered by Congress, the USOC is also the (apparently overly) proud owner of more than 25 registered trademarks, including “Team USA,” “Road to Rio,” and “Rio 2016” (not to mention the ill-fated “Boston 2024”). Citing these marks (the Rio ones, not the now-obsolete Boston one), the USOC has started sending preemptive cease-and-desist letters to companies who sponsor Olympic athletes, but not the Games themselves and threatening legal action against anyone who comments on the Games or related events on Twitter. ESPN has reported that the USOC is claiming unequivocally that “[c]ommercial entities may not post about the Trials or Games on their corporate social media accounts,” (emphasis added) including through “the use of USOC’s trademarks in hashtags such as #Rio2016 or #TeamUSA.”
But contrary to the USOC’s position, the law does not protect trademark owners against any and all uses of or references to their marks, irrespective of context. Trademarks are intended to keep other commercial players from misleading the public about the source of a particular good or service. In statutory parlance, trademark owners have the right to keep others from using their marks “in connection with the sale … or advertising of any goods or services” if such use “is likely to cause confusion, or to cause mistake, or to deceive.”
Merely tweeting about the Games with the words “Rio 2016” or “Team USA” is not likely to mislead the average Twitter user into believing that the account owner in question is somehow affiliated with the Olympics or the USOC. And companies that have paid top dollar to sponsor our best athletes should be free to tweet about those athletes—those members of “Team USA”—as long as they don’t cause confusion about their company’s affiliation with the Olympics themselves or the USOC. There are any number of scenarios in which a corporate tweet including the purportedly off-limit hashtags would come nowhere near misleading its recipient about the source’s connection to the USOC.
So why is the USOC taking such a strong stance? It likely believes that enough companies will balk at the cost and headache of inviting the ire of a sports and marketing goliath that those companies will either agree—under duress—to form an affiliation with the USOC (and thereby obtain a license to tweet), or simply comply with the USOC’s unreasonable demands, and tacitly grant it rights it does not actually have (just ask the radio stations that give away trips to “The Big Game” each February).
But forcing companies to pay for the right to participate in the global conversation that surrounds a major sporting event like the Olympics is not the point of—or a right commensurate with—owning a trademark. While the USOC’s approach may prove profitable, it lacks legal authority and is surprisingly tone deaf. The Olympics will be sufficiently commercialized without the USOC unfairly trying to claim all the spoils for itself. Even if it requires advice from his or her in-house counsel, the savvy social media director should have no trouble joining the discussion without infringing the USOC’s rights.