Social media is buzzing with Olympic hashtags, particularly #Rio2016 and #TeamUSA. But the U.S. Olympic Committee (USOC) is cracking down on hashtag use by companies without Olympic sponsorship deals, calling it “ambush marketing.” So how can non-sponsors get involved in the Olympics on social media?
First, the reason behind the crackdown. The USOC relies on sponsors for funding. Sponsors are given the right to use the Olympics to promote their products. If non-sponsors are able to use the Olympics to promote their products too, the sponsorships lose their value. So, the USOC is policing #Rio2016 to keep sponsorships.
And it’s understandable. If I spent millions on an Olympic sponsorship, I would want the unique benefit of associating my products with the Olympics. And certainly a non-sponsor stamping the Olympic rings on its product packaging seems a bit unfair.
But isn’t social media different? After all, it’s about the free exchange of ideas, news and information. Can a non-sponsor even comment on the Olympics? Not according to the USOC, which takes the position that any reference by a company to the Olympics on social media “serves to promote the company/band.” So, whether a company is wishing the athletes well or simply expressing excitement about the games, such talk is going to be considered “commercial in nature” and “prohibited” by the USOC.
Is the USOC’s position actually enforceable? Well, federal law gives very favorable protection to Olympic trademarks. Basically, any unauthorized use of an Olympic trademark for a commercial purpose is going to create some potential liability. And “RIO 2016” (even in hashtag form) is a registered U.S. trademark of the USOC. The registration covers a plethora of goods and services, from “unprocessed artificial resins” to “electric hair curlers.” So, for example, if you are an unprocessed artificial resin maker without an Olympic sponsorship deal, using #Rio2016 is kind of like using your competitor’s trademark. It should not be done without careful thought.
But what about freedom of speech? That is one factor among many at play when it comes to looking at trademark infringement. And the facts and circumstances surrounding uses of #Rio2016 on social media are going to vary from post to post. Will the USOC be able to investigate and address every one of them? How this issue shakes out over the next few weeks may be as interesting to watch as the games themselves.Benjamin L. Mitchell