The 2016 Olympics are almost here, which means it’s time for a lot of people to start worrying about whether or not they can use the term “Olympics” or related trademarks without being slapped with a cease & desist letter. Can you use the term “Olympics?”
According to Darren Rovell at ESPN, the United States Olympic Committee has been circulating a letter that attempts to restrict use of just about any terms or marks that are related to the Olympics:
“Commercial entities may not post about the Trials or Games on their corporate social media accounts,” reads the letter written by USOC chief marketing officer Lisa Baird. “This restriction includes the use of USOC’s trademarks in hashtags such as #Rio2016 or #TeamUSA.”
The USOC owns the trademarks to “Olympic,” “Olympian” and “Go For The Gold,” among many other words and phrases.
The letter further stipulates 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.
I wrote about a similar issue back in 2013 in my blog post “Is it the Super Bowl or the Big Game?” The same rules that apply to a term like “Super Bowl” also apply to Olympics trademarks.
First of all, it’s fine for private individuals to use the word “Olympics” as a part of normal speech or written communication. A trademark only gives the owner the right to control certain commercial uses of that mark. The law does not provide the trademark owner with “ownership” of a word or phrase.
What about marketers and advertisers? There are some restrictions here, but they are fairly straightforward. The key issue is whether the use of the trademark falls under “Nominative Fair Use.”
There are three factors to determine if use of a mark is nominative fair use:
- The mark must not be readily identifiable in any other way.
- The mark can only be used to the extent necessary to identify it.
- The mark can’t be used in such a way as to suggest a false connection or sponsorship arrangement.
The USOC’s proposed restrictions appear to completely ignore this important and longstanding legal concept.
The chief concern here is Factor #3. Be careful to avoid anything that might suggest that you, your company, or your brand has an official connection or sponsorship arrangement with the Olympics. You’d also best avoid using the word “Olympics” (or related terms) so much that you’re asking for trouble. But occasional uses of those terms, in a factual context, should be fine.
Note that this discussion has to do with trademark fair use. I would still advise that individuals and companies be very careful not to infringe on any Olympic copyrights. Some examples of possible copyright infringement would be rebroadcasting clips from the games or re-posting official Olympics photos.
What about sharing and reposting? This, too, seems like an overreach on the part of the USOC. If the Olympics posts an image or clip on Twitter, they are subject to Twitter’s Terms of Service like any other user. For most social media sites, those Terms of Service give other users permission to share that content. That permission doesn’t go away just because the Olympics decided they’re special and important. Marketers, advertisers, and individuals should use some reasonable common sense, but an outright ban is not appropriate here.
The result of a particular contest within the Olympic games is a fact, and anyone can talk about it or make reference to it. If Joe Schmo wins gold in fencing, go ahead and congratulate Joe and his country of origin on this historic victory. The Olympics can’t stop you from talking about things that have actually happened in the real world, nor should they. Does that mean you should re-transmit, in real time, the results of every contest? No, probably not. But news is news, and anyone can share and make reference to newsworthy facts.
In my 2013 Super Bowl post, I concluded with the following statement:
All in all, nominative fair use factor number one seems like a fairly weak hook on which to hang an annual onslaught of cease and desist letters issued by the NFL’s lawyers. But until someone is willing to stand up and fight for the right to use the actual term of this giant sporting event, the NFL will be the sole referee over who gets to use the word Super Bowl.
Sadly, I have to recommend that businesses and advertisers avoid using the term SUPER BOWL unless they want to be the hero to lead us all out of the tunnel and onto the field of trademark fair use glory.
I’m not sure I’d make the same recommendation today. The world has changed and my thinking has evolved. If you want to put up a blog post about, say, interesting facts from past Olympic games, I don’t see any reason not to do so. The USOC may send out threatening letters, but I sincerely doubt they will actually bring a legal claim against a party who’s making factual statements and whose use of the term “Olympics” falls within the nominative fair use standard. It’s time for everyone to stop living in fear of our sports overlords.
