By: Alex Praschma
While you mindlessly scroll through your Twitter, Instagram, and Facebook news feeds, have ever you stopped and wondered “could I face legal trouble for using a hashtag?” As with most legal hypotheticals, the answer is “it depends.”
Generally speaking, ordinary users are in the clear when using hashtags to connect photos or posts to social media streams inhabited by other users around the world. For companies, however, it becomes a legal issue.
During the 2016 Summer Olympics in Rio de Janeiro, Brazil, the U.S. Olympic Committee (“USOC’) allegedly “bullied” companies who were not involved in the the Olympic Games’ official sponsorships in an attempt to prevent these companies from participating in commercial, social media discussions.
Various news sources discovered and revealed that the USOC sent warning letters to those sponsoring athletes and had no affiliation with the USOC or International Olympic Committee (“IOC”), warning them that using official hashtags, phrases or photographs for commercial purposes would constitute theft of intellectual property. The letter read: “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 among many other words and phrases.” Additionally, the letter stated that “a company whose primary mission is not media-related cannot reference any Olympic results, cannot share or repost anything from the official Olympic account and cannot use any pictures taken at the Olympics.”
The USOC claims they need to provide sponsors with exclusivity to USCO intellectual property protected by U.S. law. Additionally, the USOC claims their initiative is set in place to “protect the integrity of the Olympic symbols, games, and investors.
In 2013, new U.S. regulations allowed for “hashtag” trademark applications to be submitted to the United States Patent and Trademark Office. Trademarks are words, phrases or logos that identifies the source of goods or services. Governed by trademark law, individuals and businesses are able to protect their commercial brands by discouraging other businesses from using confusingly similar trademarks. Using this body of law, organizations like the USOC may not be able to control ordinary users’ posts about the event, but they do have a say in whether non-authorized sponsors use their hashtags.
The USOC’s tactic is called “ambush marketing.” It is a strategy that prevents companies who have not paid for Olympics’ rights from using the Games to reap heightened attention to their products. Critics like Eric Goldman, a Law Professor at Santa Clara University, believes that the way the USOC is handling the situation is “overly aggressive and ridiculous” as they are essentially telling companies and sponsors that they cannot use hashtags affiliated with the Olympics even though they already pay hundreds of thousands of dollars to fund athletes’ Olympic endeavors. Here they are “using the ambiguities of trademark law to try and squelch socially beneficial conversation.”
The USOC stands their ground on the matter and plans to continue their “pragmatic approach” to encourage neutral responses. In the event a company or non-official sponsor insists on engaging in unauthorized use of the USOC’s intellectual property rights, they have threatened to pursue legal action. While it seems the USOC is justifying their preventative measures using the underlying theory of trademark law, it appears they are also contradicting one of the main goals of trademark law, to protect the public interest in fair competition in the market. By acquiring trademark rights to broad phrases and marketing techniques such as hashtags, one cannot help but think that they are attempting to monopolize the world of sports at it’s highest stage.
Student Bio: Alex Praschma is a 3L Day student with a concentration in Intellectual Property. He is currently a Legal Intern at Spartan Race, Inc.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
