If you ask me, the United States Olympic Committee is acting too big for its britches – and doing so at the expense of free speech.
ESPN reported late last month that the USOC has sent a warning letter to brands which sponsor athletes who are participating in the Olympic Games, but which don’t have an official sponsorship deal with the committee. The message: Back off.
“Commercial entities may not post about the … Games on their corporate social media accounts,” the letter by Chief Marketing Officer Lisa Baird read. “This restriction includes the use of USOC’s trademarks in hashtags such as #Rio2016 or #TeamUSA.”
Really? I mean, really?
Let’s imagine – just imagine – that after her spectacular floor performance Sunday night, Needham, Massachusetts-born Aly Raisman tweeted the following: “Excited to be competing in the all-around in Rio! It will be an Olympic challenge, but I’m going for the gold! #TeamUSA.”
She didn’t tweet that; her real tweet was far more colloquial:
“Yipppppppeeeeeeeeeeee. So proud of this team. We work so hard….”
But for the sake of argument, let’s go with my version.
Now imagine that Poland Spring Water has a non-Olympics endorsement deal with Raisman (not too hypothetical – she inked a one-year deal with the company after the 2012 London Olympics), and that the company retweeted Raisman’s (hypothetical) tweet, all without adding any commentary of its own. According to the USOC, such an act would be not merely against its rules, but a violation of U.S. trademark laws.
Why? There are several reasons. For one thing, a federal law titled the “Ted Stevens Olympic and Amateur Sports Act” (36 U.S.C. § 220501) gives the USOC the exclusive right to use the following terms “for the purpose of trade [or] to induce the sale of any goods or services”: “Olympic,” “Olympiad,” “Citius Altius Fortius,” “Paralympic,” “Paralympiad,” “Pan-American,” and “America Espirito Sport Fraternite,” or any combination of those words. It similarly bars reproduction of the famed Olympic five-rings symbol.
It also forbids the unauthorized use of any “simulation of those words tending to cause confusion or mistake, to deceive, or to falsely suggest a connection with” the USOC or the Olympic Games.
The USOC’s view is that any tweet or retweet on a company’s social media page is a commercial use. “Unless a company or organization’s primary business is disseminating news and information,” the USOC says, “social media platforms (e.g., Facebook, Twitter, Instagram, etc.) serve to promote the company/brand; to raise the brand’s profile and public opinion about the company/organization; and/or to increase sales, membership or donations. Thus, any use of USOC trademarks on a non-media company’s website or social media site is viewed as commercial in nature and consequently is prohibited.”
Wow. So retweeting Raisman’s word “Olympic” is out. Indeed, according to the USOC, Poland Spring could not even send out a tweet congratulating Raisman for her performance in last night’s gymnastics competition.
“[D]o not create social media posts that … congratulate Olympic performance unless you are an official sponsor,” the USOC warns brands in its official letter.
Companies that seek to circumvent the rules by engaging social media influencers do so at their own peril, for the influencers themselves may well be deemed to be agents of their brands.
There’s another reason for businesses to be wary about using Olympic-themed phrases on their social media pages. USOC holds federal trademark registrations for such phrases as “Team USA” and “Going for the Gold.” According to the Ted Stevens Act, those trademarks can’t be used by third parties if they are “falsely representing association with, or authorization by,” the USOC or the International Olympic Committee.
USOC guidelines even take it one step further: They threaten a lawsuit against “any entity” using the trademarks “for commercial purposes without express written consent.” They do this, apparently, regardless of whether there is a false representation of association or authorization, let alone any likelihood of confusion.
The IOC’s “Rio 2016 Olympic Games – Rule 40 Guidelines” go so far as to purport to prohibit a company that is not an “Olympic Commercial Partner” from making “[a]ny express or implied written/visual allusion to the Olympic Games” or “[a]ny use of the image of a Participant [in the Games], taken during the Olympic Games, in combination with a company or brand” (even if the participating athlete has given permission).
Most incredible of all, the same guidelines, “depending upon context,” bar the use of a long list of generic terms “in such a way as to imply an association” between an OIympic athlete and the Olympic Games – words like “Rio,” “Gold,” “Effort,” “Challenge,” “Summer,” “Games,” and “Victory.” Apparently Poland Spring can’t even retweet the words “Rio” and “Gold.”
They might as well just tweet out, “Watching a sporting event somewhere in the world. Congrats to You-Know-Who. #SomewhereDownSouth.”
The USOC’s advice to companies that are not official Olympic sponsors is unambiguous: “[D]o not create social media posts that are Olympic-themed, that feature Olympic trademarks, [or] that contain Games imagery….”
From the USOC’s point of view, any business’s speech is presumptively advertising in disguise, and therefore the potential subject of trademark enforcement. If you think the USOC can’t be serious about that, just ask an Oregon-based women’s running apparel company that was hit with a cease and desist letter for running a photo of an athlete whose bib included a tiny Olympics logo.
Trademark law is nuanced, and includes exceptions for “fair use” of trademarked terms and First Amendment-protected speech. The USOC rules are not, and have the effect of chilling all sorts of borderline commercial speech. That’s why one prominent trademark lawyer, Paul Alan Levy, has publicly offered that “pro bono representation is available to those ready to stand up to bullying.”
It’s also why, last Thursday, a Minnesota-based carpet-cleaning company, with the help of its enterprising lawyers, commenced a federal declaratory judgment action designed to establish its right to post to Facebook and Twitter such benign remarks as: “Good luck to our 11 Minnesota Olympians competing in #RIO2016.”
Don’t get me wrong – I’m not advocating that any business violate the USOC and IOC restrictions. The dividing line between First Amendment-protected speech and trademark-infringing speech is a fuzzy one, and I wouldn’t casually encourage any of my clients to risk the expense of having to defend against a lawsuit by the USOC. Given the mammoth sums of money at stake for the USOC and IOC (broadcasting rights and exclusive sponsorship deals may earn the IOC more than $4 billion this summer, according to one report), combined with the fact that the law incentivizes trademark holders to aggressively enforce their marks, the USOC will be actively hunting those who try to test the limits. Violating the Olympic trademark guidelines may well be an expensive proposition, regardless of the ultimate outcome.
Still, one can’t help but sympathize with former U.S. Olympian and business owner Nick Symmonds, who told Bloomberg BNA, “The word ‘Rio’ is the name of a place that belongs to everybody.” The USOC’s trademark enforcement policies, he says, are “a massive overreach of their rights and their power.”
If you would like any assistance or need more information, please contact the author of this alert, Robert A. Bertsche, at 617 456 018 or [email protected].