USOC: Trademark Bully or Trademark Defender?

During one of the most anticipated events in the world, the United States Olympic Committee (“USOC”) made headlines when it targeted companies that were not “official sponsors” of the 2016 Olympics in Rio. The USOC sent cease and desist letters prohibiting companies, including those sponsoring individual athletes, from using “official” hashtags, such as #Rio2016 and #TeamUSA on social media platforms.[1]

Prior to the Rio Olympics, the USOC sent letters to various companies warning them that unauthorized corporate social media accounts should not reference the Olympic Trials or Games, including use of specific hashtags, or display any images taken at the Olympic Games.[2] This controversial restriction imposed by the Olympic Committee is governed by Rule 40 of the Olympic Charter and creates a period – in this case, between July 27, 2016 through August 24, 2016, – where non-official sponsors are prohibited from using images of Olympic athletes in combination with Olympic trademarks to reference the Games.[3] Additionally, under Rule 40, companies are prohibited from even promoting products/services or congratulating the athletes on their corporate social media accounts.[4] Likewise, Rule 40 prohibits athletes from thanking or acknowledging their sponsors during that period.[5] This rule is so strictly imposed on athletes that violation of the rule could result in an athlete being sanctioned or even stripped of his or her medal.[6]

The USOC claims these measures are necessary to prevent “ambush marketing;” where a company that is not an official sponsor attempts to receive recognition for their products through misleading commercial advertising associated with the event.[7] In doing so, ambush marketing is believed to “dilute the value of sponsorship” for companies who pay a hefty sum to market their products at the event.[8] In an attempt to prevent ambush marketing, the USOC website provides that the organization broadly encompasses “the right to control logos and word marks associated with the Olympic, Paralympic and Pan America Games in cities/years yet unnamed.” [9]

Is this method of trademark protection an overreach by the USOC? One company targeted by the Olympic Committee’s aggressive approach was women’s fitness apparel brand, Oiselle. When Olympic runner Kate Grace earned her spot to compete in the Olympics, her sponsor, Oiselle congratulated her on its Instagram account using the official USOC image.[10] Not long after, the CEO of Oiselle received an email from the USOC informing her that the post violated the USOC trademark guidelines. The USOC demanded that Oiselle immediately remove “all Olympic-related advertising” and images related to the Olympics, including photos of athletes competing at the trials.[11]

The USOC is less likely to pursue an individual tweeting about their favorite Olympian or national team, because it is more concerned with the likelihood of confusion between an athlete’s sponsors and an official Olympic sponsor. However, the USOC can initiate a civil action against “anyone who uses an Olympic trademark in a way that tends to cause confusion or falsely suggests an association between any Olympic or Paralympic activity and that user without proper consent.”[12] If litigation ensues, demonstrating trademark infringement under the Lanham Act would require the USOC to show that a likelihood of confusion exists between the USOC’s use of its trademarks and the alleged infringer’s use of the same or similar trademarks.[13]

One problem for the USOC lies in the short period of time the Olympic games run, which makes this extremely time sensitive.[14] In order to avoid this issue, the International Olympic Committee (IOC) has requested countries enact legislation granting special trademark protection to the Olympic properties.[15] Therefore, Congress granted the USOC exclusive rights to control “all commercial use of USOC trademarks, imagery and/or terminology in the United States,” thereby permitting the USOC to file a lawsuit against any entity using the USOC trademarks without written consent. [16] This resulted in the federal statute, known as the “Ted Stevens Olympic and Amateur Sports Act,” which was enacted in 1978 to protect Olympic-related trademarks.[17]

There is no question that tThe implementation of the statute and Rule 40 creates a negative impact on athletes’ individual sponsorship deals. And although the companies may not be able to afford the price tag of becoming an official sponsor, they still spend a lot to sponsor athletes at the Games. Is there a way to protect Olympic trademarks from unauthorized use and the rights of corporate sponsors without feeling like a trademark bully? Given the backlash from this year’s regulations, I guess we will see if anything changes at Winter Games in 2018. See you in PyeongChang!

 

[1] Kate Lamble, Who can’t tweet about #Rio2016?, BBC News (July 31, 2016), http://www.bbc.com/news/blogs-trending-36915565,

[2] Id.

[3] Chanel L. Lattimer, Lord of the Rings: The Olympic Committee’s Trademark Protection, IP Watchdog (June 7, 2016), http://www.ipwatchdog.com/2016/06/07/olympic-committee-trademark-protect... and Rule 40 of the Olympic Charter: What You Need to Know As a Participant, International Olympic Committee, https://stillmed.olympic.org/Documents/Athletes_Information/Rule_40-Rio_..., (last visited 2016).

[4] Id.

[5] Shan Li, Olympics bans most brands from saying ‘Olympics’ or ‘Rio,’ even on Twitter. Snark ensues, Los Angeles Times (Last updated Aug. 11, 2016), http://www.latimes.com/business/la-fi-olympics-rule-40-20160802-snap-sto....

[6] Rio Olympics 2016: Athletes could face sanctions over controversial rule 40, bbc news (Last updated July 27, 2016), http://www.bbc.com/sport/olympics/36909409.

[7] Id.

[8] Id.

[9]U.S. Olympic and Paralympic Brand Usage Guidelines, Team USA, http://www.teamusa.org/brand-usage-guidelines, (2016).

[10] Lamble, supra, note 1

[11] Id.

[12] Zosha Millman, The IOC is Playing Trademark Bully – Because They Can, LXBN (July 26, 2016), http://www.lxbn.com/2016/07/26/the-ioc-is-playing-trademark-bully-becaus....

[13] Lattimer, Supra, Note 4

[14] Id.

[15] Id.

[16] Inside the USOC: History, Team USA, http://www.teamusa.org/About-the-USOC/Inside-the-USOC/History, (2016).

[17] Id.