The BBC has reported that the U.S. Olympic Committee is taking a hard line against companies that use the twitter hashtag #Rio2016 in their tweets and who are not official sponsors of the Games. The USOC holds a registered trademark in the US for Rio2016. According to the BBC story, while the USOC is prepared to tolerate the non-commercial use of the hashtag in tweets by individuals, it draws the line at corporate use.
The move is hardly surprising – for decades now Olympic organizers have been trying to crack down on ambush marketing. Ambush marketing relies upon the creation of mental associations between a major event (in this case, the Olympics) and the products or services of non-sponsor companies. They can do so through trademark law, which protects the registered trademarks of the event, as well as through special laws prohibiting ambush marketing. These special laws have proven controversial because they ban the creation of “associations”, and such associations can be generated by using ordinary words that are descriptive of the event, its location or the year in which it is held.
Sponsors pay top dollars for sponsorship rights and insist upon a high degree of protection for this investment, and event organizers will insist that these revenues are necessary in order to make the games a success. Without the sponsorship money, the story goes, there would be no games. Thus everyone wins if sponsors’ rights are protected. The story is, however, a bit more complicated than that. There are many companies that invest, in one way or another, in amateur sporting associations and in athletes. A company that sponsored a promising young athlete for years, allowing her eventually to train and compete at the national level would find that when that athlete finally made it to the Olympics, they might run afoul of ambush marketing laws by publicly celebrating her achievement. “XYZ Corporation celebrates Jane Doe in her quest for Olympic Gold!” would, for example, most likely attract cease and desist letter.
The Twitter hashtag issue is both interesting and controversial. According to Twitter, hashtags are a device created on Twitter to allow for the indexing of key words or topics. In other words, hashtags facilitate conversations on a vast social network and allow people both to follow and to participate in those conversations. Thus, while Rio 2016 may be registered trademark of the USOC, #Rio2016 is an indexing term that allows people interested in the summer games to follow Twitter conversations on that subject. For the USOC to assert that non-sponsor companies cannot use the hashtag is to tell them that they cannot participate in those conversations. As such, their position likely goes too far. At least one U.S. court would seem to agree. In 2015 the U.S. federal district court in Eksouzian v. Albanese ruled that it was not trademark infringement to use a trademarked term in a hashtag “because hashtags are merely descriptive devices, not trademarks, unitary or otherwise, in and of themselves.”
Ironically, the push to crack down on so-called ambush-marketing may have its greatest impact on small businesses that do not have the resources to fight back when sent a cease-and-desist letter. As my co-authors and I noted in a 2011 article on ambush marketing, the real competitors of Olympic sponsors are generally large corporations with teams of lawyers that can help them design marketing campaigns that stay just on the right side of any anti-ambush marketing legislation.
Coverage of this issue can also be found in the article in Le Devoir by Boris Proulx “Ne sera pas Rio qui veut”.