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USOC Cracks Down on Official Hashtag Use

If you work in social media marketing, content marketing, heck, if you work in any type of digital marketing, you know that being a part of a trending conversation is a best practice.

Raidious is purpose-built to plan, create and distribute real-time content. You read that right, we plan for real-time content. It may seem counter-intuitive, but if you don’t think planning went into Oreo’s famous “dunk in the dark” tweet, you are wrong. So wrong.

In 2016, we are still planning for real-time content opportunities, and with the 2016 Games around the corner, we are hard at work. That is, until this week. We had to pause when we read that the United States Olympic Committee (USOC) has warned unofficial sponsors that the use of #TeamUSA and #Rio2016 is considered stealing intellectual property.

According to a letter obtained by ESPN, “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.”

Does this mean brands can’t mention the Olympics? Can’t use the #Rio2016 hashtag if you’re not an official sponsor? Can’t retweet or share content from the Olympics accounts?

Here’s the thing …

Rule 40 of the Olympic Charter.

A bylaw to the rule states: “Except as permitted by the International Olympic Committee Executive Board, no competitor, team official or other team personnel who participates in the Olympic Games may allow his person, name, picture or sports performances to be used for advertising purposes during the Olympic Games.”

This has become an issue because it directly affects the athletes.

Michael Sol Warren of Paste Magazine explains Rule 40 in more depth: “Companies who sponsor the games, such as Nike, Coca-Cola, and Visa among others, are ‘Official Partners of the Olympic Games’ and are exempted by the IOC Executive Board from this rule. But when it comes to endorsement deals, these companies tend to pull from only a small pool of extremely successful and popular athletes. That’s why TV commercials during the Olympic season are dominated by a rotating cast of Ashton Eaton, Michael Phelps, Usain Bolt and Gabby Douglas.”

While the IOC has loosened its regulations a bit to allow ads that begin before the games to continue, it still states that non-sponsor companies cannot in any way imply that they are connected to the Olympics.

So, what does this mean for your company? (Assuming your company is not an official sponsor.)

Matthew Clark, Associate Attorney at Meitus Gelbert Rose LLP, told Raidious that, unfortunately, like many areas of the law, there is no clear answer.  

“Hashtags can serve as trademarks depending on the particular wording used and the goods and services offered under it,” Clark said. “Assuming the wording of the hashtag can function as a trademark for its goods and services, hashtags tend to be accepted by the USPTO as trademarks when they are used off-platform as opposed to within the body of a tweet.  

As a general matter, when a hashtag is used within the body of a tweet, it tends to provide an organizational function as opposed to serving as an identifier of source.  That being said, whether a hashtag used in a tweet is infringing another brand likely also depends on the context of the use.”    

At Raidious, we recommend that companies still plan for real-time content opportunities during the Olympics, but as AdWeek puts it, “tweet carefully.” Oreo’s “Dunk in the Dark” tweet didn’t mention the Super Bowl or use any hashtags, but we all knew what the cookie was referencing.