While the 2016 Summer Olympics in Rio came to a close at the end of last month, intellectual property conflicts arising out of the Games may just be beginning.
The United States Olympic Committee (USOC) has been reported as having been strictly enforcing their trademark rights via cease and desist letters. These C&Ds are warning non-sponsor companies to refrain from posting about the Olympics on their social media accounts – even when non-sponsors companies are simply tweeting out good luck to athletes or commenting on the Trials’ or Games’ results. Many of the tweets USOC would like to find actionable include hashtags such as “#RIO2016”, “#TEAMUSA”, and “#RIOREADY”.*
The USOC’s trademark rights are governed by the Ted Stevens Olympic and Amateur Sports Act, codified at 36 U.S. Code Section 220506. Under this act, the USOC has the exclusive rights to use the name “United States Olympic Committee”, the symbols of the committee’s events, the emblem of the committee, and the words “Olympic” and “Olympiad” (among others). See the USOC’s brand usage guidelines for more information. The act provides a cause of action against anyone who – without consent – uses these protected marks “for the purpose of trade, to induce the sale of goods or services” in such a way that the use tends to cause confusion or mistake, to deceive, or to falsely suggest a connection with the corporation or the corporation’s events.
Companies targeted by the USOC may dispute the elements of the claim – by claiming that the use was not for the purpose of trade, for example. Companies may also raise the defense of fair use.
There are two primary fair use defenses in trademark law: descriptive fair use and nominative fair use. Descriptive fair use is the defendant’s use of a plaintiff’s trademark in a non-trademark way. Nominative fair use arises where a defendant uses a plaintiff’s trademark to refer to the plaintiff’s goods or services – usually for the purpose of comparative advertising – and the defendant does nothing to suggest endorsement or sponsorship by the plaintiff.**
While it would be naive to think that companies tweet about current events with no expectation that their words will result in increased sales or, at the very least, good will of the company, the line between noncommercial comment and advertising seems hard to discern. In today’s social media driven world, the Internet is a valuable marketplace quite unlike storefronts or print advertising. As such, courts will have to evaluate claims of confusion as to source or endorsement with careful consideration of the context of the Internet and social media. While I believe companies should surely be allowed to comment upon current events without fear of an infringement lawsuit, I also recognize that speech by companies seems necessarily commercial and such comment has the potential to undermine the right of trademark owners to license their marks and receive sponsorship revenue.
Whether the C&Ds issued by USOC will evolve into lawsuits remains to be seen (at the time I’m writing this post, anyway). However, it seems inevitable that the same issues will arise again in February 2017 when #superbowlLI tweets start making their way onto Twitter feeds.
*The protectable nature of hashtags as trademarks is a separate but related issue that I hope to write about soon.
**The full nominative fair use test provides that: (i) the product or service in question must be one not readily identifiable without use of the trademark, (ii) only so much of the mark or marks may be used as is reasonably necessary to identify the product or service, and (iii) the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.