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Is the US Olympic Committee’s #TwitterBan Fair or Foul?

Posted in Fair Use, First Amendment, Trademark Bullying

The 2016 Summer Olympics will officially* begin in eight days. Yet the U.S. Olympic Committee’s (USOC) efforts to enforce the Olympic trademarks are truly an eternal battle. While the USOC has a reputation for aggressively enforcing its trademark rights, the USOC seems to have set a new personal record for aggressive tactics, attempting to enforce an all-out #TwitterBan on companies making any reference to the Olympics on Twitter.

*Note: while the games officially open on August 5, the U.S. Women’s Soccer Team takes on New Zealand two days earlier on August 3

The first victim of the USOC’s recent activities was apparel company Oiselle, who sponsors U.S. runner Kate Grace. Back on July 7, Ms. Grace won the 800 meters U.S. Olympic Trials and Osielle took to Instagram to congratulate her with the post below:

RoadtoRio

The USOC contacted Osielle and demanded that Oiselle take down the images and all other “Olympic-related advertising.”

But it appears that the Osielle dispute is only the tip of the iceberg. On July 21, ESPN reported on the USOC’s broader enforcement efforts, including a letter campaign directed at companies that sponsor athletes, but are not official Olympic sponsors. The letter warned companies not to engage in activities that the USOC claims infringes upon its trademark rights.

However, the USOC’s concept of infringement seems a bit overbroad, even by Olympic standards. According to ESPN, the letter informed companies that:

Commercial entities may not post about the Trials or Games on their corporate social media accounts. . . . This restriction includes the use of USOC’s trademarks in hashtags such as #Rio2016 or #TeamUSA.

Not only that, but the USOC claims that, other than media companies, no company can reference Olympic results, share or repost anything from the official Olympic social media account, nor use any pictures taken at the Olympics.

U.S. law provides the USOC with special treatment  for its trademark rights. It receives the exclusive right to use the the Olympic Ring symbol, the Olympics mark, and related marks. The statute also prevents others from using trademarks, trade names, sign, symbols, or insignia that falsely represent an endorsement, association, or authorization from the USOC or International Olympic Committee.  Yet the statute does not provide the USOC with the exclusive right to discuss the Olympics, disseminate facts about the Olympics, and certainly no exclusive right to tweet (or retweet) about the Olympics.

The USOC’s letter appears to take the position that all Tweets constitute a form of advertising, ignoring the possibility that tweets also constitute a form of protected speech. Further, the use of #hashtags in Twitter are largely a form of communication, providing a short-hand way of identifying the topic of the tweet. Any consumer that is reading a tweet presumably has a Twitter account, and understands that no authorization is required to include a hashtag in a Tweet. Accordingly, the risk of consumer confusion seems unlikely, if not impossible, unless the tweet uses some other wording or symbol that falsely suggest an endorsement.

Setting aside the first amendment issues, the USOC also has contractual issues to consider. The Twitter Terms of Service require the USOC to grant Twitter a license to use all posted content, and the right to sublicense that right. It is an open question of whether the USOC can even enforce its claimed ban on sharing and reposting the USOC’s tweets.

It is possible the USOC will take a more balanced approach in interpreting these rules once the games begin. There were certainly be a number of companies willing to test the waters to see just how far the USOC is willing to go. Between the conditions of athlete housing, possible threat of the Zika virus, and other issues that have been dominating the run-up to the Olympics, it seems like the USOC should be excited to get any positive publicity, even if it from unofficial sponsors.