EDITORIAL NOTE: This article would have been more timely several weeks ago, and it is entirely the editor’s fault (i.e., me, Gene) for not publishing this sooner. I still hope you find it as interesting as I did.
With the Winter games in PyeongChang, there was a flurry of social media posts, advertisements and promotions surrounding Team USA. As your business or brand shows support for a favorite Winter Olympics team or athlete, you may want to think twice before sending out praises on social media or advertising. In fact, doing that or even using official Olympics hashtags could get you into a lawsuit.
Fara Sunderji, partner at Dorsey & Whitney, sat down with IPWatchdog for an exclusive interview about how to protect your business or brand. She assists clients in the development and execution of all types of promotions from sweepstakes to complex contests of skill, including giveaways on Instagram, Twitter and Facebook. She says that businesses need to be very careful during Olympic season and has some advice.
So, how do brands go for the gold without being an official sponsor? The International Olympic Committee (IOC) and the United States Olympic Committee (USOC) don’t make this easy, unfortunately. Both committees have a lot of rules, and many long-time official sponsors like Budweiser, Citi, McDonalds, Hilton, TD Ameritrade and AT&T, have decided against renewing their contracts after Rio. The recent revisions to what is known as “Rule 40” have allowed some room for unofficial sponsors to participate in the blitz surrounding the Olympics, but brands and athletes are still hamstrung by the rules, according to Sunderji. Rule 40 is a provision in the Olympic charter that prohibits athletes and coaches from allowing their names or images to be used in unofficial advertising during the Olympic Games that creates any association (direct or indirect) between the advertiser and the Olympics.
“The purpose of Rule 40 is to prevent over-commercialization of the games and to protect the exclusivity of the official sponsors, who spend many millions of dollars to market during the Olympics,” she explained. “So, there was a blackout period (Feb 1- Feb 28 this year) where brands who sponsor athletes, but are not official Olympic sponsors could not run ads featuring their athletes or even wish them good luck/congrats on social media.”
For example, for the Rio games in 2016, Rule 40 was amended – allowing for these unofficial sponsors to apply for a waiver to run ads during the blackout period. These ads still cannot feature any Olympic trademarks and a whole host of other terms such as Pyeongchang, Games, Medal, Effort, Performance, Bronze, Silver and Gold. Importantly, the campaign concepts must have been submitted for approval by August 1, 2017 and each ad must be approved before it can be run.
Additional rules include: Unauthorized brands can’t use #TeamUSA, #Olympics #GoForTheGold #PYEONGCHANG 2018 or any other USOC branded hashtags; athletes themselves can share still photos and their experiences in words (say in 280 characters on Twitter), but cannot share videos in the “Field of Play”; athletes are also prohibited from making any postings for the purposes of demonstration or any form of political, religious or racial propaganda; while Rule 40 provides some avenues for unofficial sponsors to participate, the deadlines require so much lead time (submissions for approval were due to the IOC by 10/1/17) that athletes who aren’t shoo-ins and smaller brands cannot benefit from these rules revisions.
“Businesses of all sizes need to exercise extra caution when wishing to provide social media or advertising support,” explained Sunderji. “Always root for Team USA, but don’t congratulate your favorite athletes in social media posts from your brand’s account or in advertising. Two years ago, a jury awarded Michael Jordan $8.9 million after a grocery store took out an ad congratulating him for his induction into the Basketball Hall of Fame. Prior to the jury verdict, the case went up to the Seventh Circuit and the court held that the ad qualifies as commercial speech, defeating the defendant’s First Amendment defense.”
Companies also need to stay away from anything else that suggests authorization, sponsorship or an official connection to the Olympics. This includes using the famous Olympic rings, the official logo, the official mascot or hashtags incorporating trademarked terms about commercial promotions. Also, be careful about using the word “official.”
“You may wonder, ‘But people all over the web are posting about #Rio2016 and #TeamUSA – Why can’t our brand do the same? Remember that individuals who post on their own personal social media pages have much more latitude than advertisers when it comes to use of trademarks and copyrighted material,’ Sunderji reminded us. “This warning extends not only to the Olympics, but also to the Super Bowl and awards shows as well.”
In fact, in the U.S., the USOC has very strong IP rights and a team of attorneys protecting the brand from both innocent infringers and willful infringers. The IOC also has a detailed set of social and digital media guidelines that apply to athletes and, by extension, their sponsors who are not also official Olympic sponsors. The Ted Stevens Olympic and Amateur Sports Act of 1998, 36 U.S.C. §22050, provides the USOC with very broad trademark rights. Through this Act, Congress granted the USOC the exclusive right to use and license certain Olympics-related trademarks and symbols. It also provides for the USOC’s right to file trademark infringement suits under the Lanham Act, the USOC does not have to demonstrate likelihood of confusion like ordinary brand owner plaintiffs.
She said, “The intent behind this monopoly is simple – The U.S. Olympic team does not get federal funding, so the USOC must raise the money and it does so through sponsorship deals. It is important to note that the Act does not prohibit individuals from using Olympic trademarks on social media for non-commercial purposes. The IOC’s social guidelines, in fact, encourage athletes to post on personal social media accounts for non-commercial purposes.”
What it comes down to is that your brand is not an official sponsor of the Olympics, you need to be careful with associating yourself with the Olympics or Team USA – This means not using Olympic trademarks in advertising or promotions. Posts from brand social media accounts are likely advertising, so you must be careful about hashtags and other references to the Olympics on social media as well. And of course, right of publicity laws apply when brands use the name or image of an athlete even it is just a tweet congratulating someone for winning a gold medal.
“Be creative,” Sunderji said. “You don’t need to use the Olympic IP rights to get in the game. Think of ways to evoke the spirit of the games without suggesting any official connection or sponsorship. For Rio one brand started using phrases like ‘Big Event in the Southern Hemisphere” and “city that rhymes with Neo Bee Sin Arrow.’”