“Preposterous!” “Ridiculous!” “Outrageous!” These are just some of the words ending in “ous” that have been shouted about the Createful offices this afternoon, after hearing the news that the US Olympic Committee is clamping down on the use of the “#Rio2016” hashtag on Twitter. But delving into the murky world of IP, trademarks and legal cases uncovers more questions than answers…
The first link that was shared over our inter-office Slack channel was the BBC’s article explaining how several companies have been contacted by the USOC warning them of the use of protected copyrighted content. At the outset it makes clear that you or I as individuals will be allowed to say what we like about the Olympics, with or without the #Rio2016 hashtag. It all boils down to sponsorship – if you’re a company that doesn’t financially sponsor an athlete or the games, then you can’t mention the games, including the hallowed hashtag. You can’t even share or repost content or photos from the official Olympic account. USOC chief marketing officer Lisa Baird said
“We need to give sponsors exclusivity to our intellectual property that is protected by U.S. law”
The key for me in that quote is U.S. law. So what about the law here in the U.K.? Here at Createful we’re not associated with the Olympics in any way – what would happen if we tweeted about a GB team result with the #Rio2016 hashtag? What if we encouraged the US team with the #TeamUSA hashtag? What would happen if we retweeted something from the official @TeamUSA Twitter account?
In another article on the Guardian website, intellectual property lawyer Mark Terry is quoted as saying;
“Trademark infringement occurs when another party uses a trademark and confuses the public as to the source of a product or service that’s being used in commerce. That’s not what happens when you use a hashtag. I’m not selling a product or service, I’m just making statements on an open forum. How else do you indicate you are talking about the Rio 2016 Olympics without saying #Rio2016?”
Hopefully that makes it clear, and I can’t imagine any brand in their right mind deliberately pretending to be a sponsor when they’re not – that would be very risky. Scottish legal specialist firm Brodies LLP point out that “it is possible to get trademark-protection for a #tagged slogan in Europe and the UK: For instance, #likeagirl is a protected trademark owned by Procter & Gamble under the categories for female hygiene products and advertising.” This use case is understandable, and if another related company tried to use that same hashtag to draw attention to their product, then P&G would have every reason to take up a legal case. But to think that a company shouldn’t be allowed to use a publicly accessible hashtag connected to the Olympics is simply scandalous.
Oh look – there’s another “ous” word!