Rio 2016: Trademarked Hashtags

Rio 2016. Road to Rio. The Olympics. Going for Gold.

I’m allowed to say all these things because I’m an individual (or a media publisher). I can put a hashtag in front of them and tweet them, too.

If I was a brand doing that though, I could land myself a lawsuit. Why?

Trademarked hashtags.


Brands and the Olympics

Official sponsor brands pay a lot of money to be formally associated with the games (a reported price tag of up to £64 million for main sponsors). And that investment has come with some problems already, from Olympian Village controversies to the Zika virus and the doping scandal.

The fact remains however that, overall, it is still positive for a brand to be linked to this Summer’s global event. Everyone wants in on the action.

But sporting events have always been quick to protect the exclusivity of brand sponsorship and avoid guerrilla marketing, thus protecting their future income streams. Like when the NFL forced people to use generic phrases such as “The Big Game” instead of the “Super Bowl” back in 2014.

Those who ignore the warnings can find themselves in hot water.

An easy legal pitfall to avoid you might say. If you’re not officially associated, just steer clear, right?

The water becomes murky for brands who are in some way affiliated, but not primary sponsors. Take for example Telstra. The Australian Olympic Committee is suing them for false and misleading conduct over ads for a new app with Channel Seven which was launched specifically to broadcast the Games.

There’s an obvious Olympic link. But they haven’t paid a high enough price tag to be allowed to call themselves an official partner.

And what about brands who have no obvious links, but still want to get involved in the mass conversation?

According to Google, this year’s Olympics have driven the most search on YouTube over the last 12 months, culminating in more views than the last World Cup and the last two UEFA European Championships. There’s too much online consumer conversation for brands to simply ignore.

Its plain good PR for national brands to show support and patriotism for local athletes.

But even a cynical old Marketer like me can see past what brands might be able to benefit from commercially and recognise that there are other, more emotive reasons why these sponsorship rules are problematic.

So first, let’s understand what the rules are (and whose bright idea they were)


Rule 40

In 2015 the Olympic ruling body - the International Olympic Committee (IOC) - made modifications to the Olympics’ Rule 40 within their sponsorship guidelines. The amendments were supposed to help some unofficial Olympic sponsors leverage the games in their marketing efforts.

The changes allow athletes to appear in generic advertising that does not explicitly mention the Games or use any Olympic intellectual property (like logos for example). And athletes also are now allowed to tweet about non-official sponsors provided they don’t reference the Olympics trademarks.

Then in 2016, the U.S. Olympic Committee (USOC) sent a warning letter to non-sponsor companies advising them again of their rules:

“Do not create social media posts that are Olympic themed, that feature Olympic trademarks, that contain Games imagery or congratulate Olympic performance unless you are an official sponsor as specified in the Social Media Section.”

If you break the rules you’ll receive a demand to remove the content. This happened to Oiselle, an athletic clothing company that sponsored 15 Olympic athletes during the July trials. One of their recipients was Kate Grace. The demand to remove a social media post of her with a small Olympics logo on her top resulted in backlash from athletes and the public alike:

So what other things are prohibited by the Olympic Committee during the games?

You must not use words that incorporate the word “Olympic,” such as Mathlympics, Aqualympics, Chicagolympics, Radiolympics, etc. (Darn it, the Mathlymipcs sounds like fun. Said no one. Ever)

You can’t use hashtags that include Olympics trademarks such as #TeamUSA or #Rio2016. (Hence the fantastic displays of imagination on Twitter like my favourite - #BrazilianSportsDay) 

You cannot post any photos taken at the Olympics. (This rule isn’t in the guidelines, it’s from a letter written by USOC chief marketing officer obtained by ESPN) 

You can’t feature Olympic athletes in your social posts. (Bit of a bummer for their own PR, more on that later)

You can’t even wish them luck. (Just downright rude, this one)

Don’t post any Olympics results. (Because you can trademark facts, now?)

You can’t share anything from official Olympics social media accounts. Even retweets are prohibited. (Do Twitter know you’re gagging their platform?)

No creating your own version of Olympic symbols, “whether made from your own logo, triangles, hexagons, soda bottle tops, onion rings, car tires, drink coasters, basketballs, etc.” (CBS, go stand in the naughty corner)

The Campaign Against Rule 40

This has all understandably led to some controversy.

And that controversy is coming about during a time of heightened campaigning for athletes’ rights.

At the 2012 Games, Rule 40 had caused drama when athletes used the hashtag #WeDemandChange on social media. They wanted to draw attention to the fact that the IOC’s attempts to protect the exclusivity of official sponsors was restricting the athletes’ ability to promote their current sponsors and therefore, restricting their ability to attract new sponsors.

Now for the 2016 Games, an anti-Rule 40 ad campaign has come to the fore (though we still don’t know who is behind it).

Whoever it is, it’s bloody good.

The website offers cheeky ways for people to bypass the rules using ready-made social posts that highlight how extreme the restrictions are:

Alongside that, athletes are taking matters into their own hands.

On July 26th, the day before the Rule 40 black-out period started, many athletes took to Twitter to circumvent the rules and thank their sponsors on what they called “Rule 40 Eve”:

So brands don’t like the rules. And athletes don’t like them, either.

But another question begs to be answered; are the rules even legally binding?


Can You Trademark A Hashtag?

In recent times media outlets like TechDirt have reported on case law where it seems there is no part of trademark law in America where it is applicable to facts like, say, the results of sporting events.

Beyond that there’s also a huge issue with proclaiming that a brand account can’t retweet an Olympic account.

Apart from the fact that it goes against the notion of “social” media, the ability to make your account private is the avenue Twitter itself would advise you use to avoid your content being shared.

So trademarking sports scores and retweets is a grey area.

Yet hashtag trademarking does happen.

The American Marketing Association reported that 2,900 global hashtag trademark applications were filed in the last five years (with 1,400 global applications in 2015 alone) as brands sought to protect the intellectual property of their content streams.

Compare that to 2010 - four years after the launch of Twitter - when only seven companies had submitted applications to trademark hashtags.

Since then hashtags have been secured by small businesses and big brands alike, with the most recent #sayitwithpepsi hashtag registered in Europe by PepsiCo last year.

How do they decide what to trademark?

Well the U.S. Patent and Trademark Office states that a hashtag is eligible for registration only if it operates as an identifier of the source of the applicant’s goods or services.

So the US Olympic Committee holds the rights to the hashtags #RIO2016 and #TeamUSA.

But they have also trademarked generic words/phrases such as “Olympic”, “Olympian”, “Future Olympian”, “Going for the gold”, “Go for the gold”and “let the games begin.”

Good job Greece hasn’t sued them for illegal use of the work “Olympian” dating back to 776 BC then. #JustSaying


Should The Olympics Limit Social Media?


BAD For the Audience

For any modern sporting event, a focus on fan engagement is a wise move.

Research noted by Marketing Week concluded that brands with a perceived “fan focus” and “clearly communicated social values” were deemed the biggest winners at Wimbledon and Euro 2016.

Likewise WIRED concluded during their coverage of the NBA finals:

“Sports and social media are a perfect fit for each other, combining a massive, opinionated audience with conversational technology.”

The “Handbook of the London 2012 Olympic and Paralympic Games: Volume Two” talked about the necessity of social conversations to the future of the Olympics specifically.

In it author Vassil Girginov writes:

“As more Olympic fans shift their attention to news and entertainment distribution within social media platforms - via mobile devices on the go rather than televisions in the home - this could jeopardise the stability of the Olympic programme and the future viability, requiring a new overhaul of its infrastructure.”

Sporting events rely on sponsorship to survive and thrive. Consumers know this as much as brand communicators.

However, Olympic sponsorship is different from other sporting events.

The Games are still influenced by the ideals of amateurism promoted in the late 1800s by Pierre de Coubertin. The exclusion of marketing in the venues eliminates an entire revenue stream. That means that over 40% of Olympic money comes from corporate sponsorships.

It costs billions to run this global event. We get it.

But should that cash come at the cost of the funding and promotion of the athletes themselves?


BAD For the Athletes

The restrictions on communications create an obvious problem prohibiting athletes from fully experiencing and sharing their Olympic moment.

But the emotional experience could be the least of their worries, if they can’t afford to make it there.

While the USOC and others will argue that sponsor money allows them to support athletes, the stringent rules can simultaneously hold back athletes because companies that can’t publicly support them during the Games can’t justify the investment of sponsoring them.

A quick look back at the Osielle case above demonstrates this very issue. Athlete Kate Grace’s boyfriend, Patrick O’Neil, penned a five-paragraph Facebook post, urging readers to:

“SHARE this post to make people aware of the behind the scenes bullying that Team USA does to the athletes chasing their dreams and the people and companies that are there for them during the years of training when no one else is.”

True to his ask, the post has since been shared some 1,800 times.

Oiselle CEO Sally Bergensen explained eloquently - and acutely - the drastic chasm between what her company and the official committee had provided in support to Kate and others:

“It costs $300,000 to send an Olympian to the Games, and for our athletes, the USOC has reimbursed them about 1 percent of that cost. Is that supporting them?”

Similar stories emerge from elsewhere, like startup who build tools for athletes and teams, the first of which is a crowdfunding platform built specifically for athletes.

Co-founder Emily White exposed the fact that, despite being a company built specifically to help fund athletes, the branding rules ban them from publicly congratulating those athletes they’ve helped.

With the reported average US Olympic hopeful’s salary a mere $15,000 per year juxtaposed to the billions invested by big brand sponsors, it’s no surprise that the whole brand protection issue is turning into a bit of a PR headache for the Olympics.

You see, people still believe that there is a higher purpose to the Games; a sporting competition that celebrates the dignity of mankind and the triumph of the human spirit.

The general public - the very people the big sponsors are trying to woo - don’t want to think of it as a money-making machine…


BAD For the Olympics

The IOC is in charge. It has the monopoly. It makes the rules.

But is their product an optional commodity? And should they do more to ensure its survival?

When the Polish city of Krakow withdrew its bid to host the 2022 Winter Olympics in 2014, headlines proclaimed that “no one wanted to host the Olympics.”

Granted, the rejections could be attributed to the rising cost of hosting the Games. The 2014 Olympics in Sochi ran up a bill of approx. $51 billion, while the 2008 Beijing Games cost nearly $40 billion.

Meanwhile, there are claims from other quarters that the audience demographics indicate the average age of Olympics fans is rising.

Limiting opportunities on social media, therefore, is counterproductive to enticing new (younger) fans.

In my opinion, if the Olympics try to outlaw social media engagement, limiting conversations and scaring away brands that would fuel the saturation of online conversations, then they won’t reach the generations who go directly to social media for their news consumption.


How To Unofficially Join The Fun

I have to admit that most of the 2016 official sponsor efforts have been underwhelming in my opinion.*

*P&G’s ‘Thank You, Mom’ campaign is the obvious exception although it was first introduced for the 2012 London Olympics and has now amassed over 18 million YouTube views.

Unofficially, some companies have been able to design ad campaigns that just allude to the Olympics and Under Armour’s Rule Yourself campaign is a great example. It focuses on athletes’ training and sacrifices. One of the ads features 18-time gold medalist Michael Phelps.

Other large brands like Adidas and New Balance have successfully created similarly ambiguous marketing campaigns, skilfully avoiding Olympics IP references, logos or imagery:

But if you don’t have enough cash to sponsor Olympic medal winners, how do you leverage the Games to your communicative advantage?

Non-sponsor brands can still participate in the conversation if they can creatively latch onto “moments”, as Oreo did with the now famous “you can still dunk in the dark” tweet during the Super Bowl blackout.

Online betting platform Paddy Power have already done this with a cheeky reference to the doping scandal:

And some brands are just plain working the words:

That’s if you want to play by the rules, of course…