Recent media coverage has reported that it will be prohibited for companies to use hashtags such as #Rio2016, or to share official reports regarding the Olympic Games on social media. Are these serious threats? Or are they simply (unsuitable) attempts to protect official sponsors as comprehensively as possible?
Firstly, a widespread misconception needs to be cleared up: The registration of a sign as a trademark does not mean that the sign cannot be used without the permission of the trademark owner at all. Otherwise it would even be prohibited to order a Coca Cola or to write this article. As is often the case, it depends on the way in which the registered trademark is used – which may be legal or illegal. Nevertheless, the warnings are not completely unfounded:
Only a few people may be aware that specific Austrian legislation exists regulating the use of Olympic emblems and designations (protection of the Olympic symbols and designations is a requirement for a successful application for hosting of the Olympic Games). However, it seems to be doubtful whether the hashtag #Rio2016 is in fact covered by the definition of protected Olympic designations. Furthermore, this specific Austrian legislation merely prohibits the use of the Olympic symbols and designations for marking goods or services.
A brief glance at the available trademark database does not reveal a trademark application for the hashtag #Rio2016 (at least not with protection for Austria or the whole European Union). However, besides a corresponding word and device-trademark (logo), the IOC indeed owns the European Union Trademark "RIO 2016" (no 006078182), with an application date of July 6, 2007. This trademark covers a wide range of goods and services in all classes (which, with regard to the sponsoring and merchandise-business, is not unusual for event-trademarks); eg such trademark is even registered for "material for stopping teeth" and "dental wax" in class 5, or "incubators for eggs" in class 7. The idea behind such an event-trademark is to reserve the commercial use of the protected signs to use by official sponsors.
Regardless of the question whether the IOC indeed needs trademark-protection for incubators, the purpose and benefit of event-trademarks are generally controversial:
- anyone can request the cancellation of a trademark if it has not been genuinely used within the last five years. In the case at hand, a genuine use for example, for dental wax and incubators for eggs at least seems to be doubtful;
- furthermore, it is controversial whether such event-trademarks are indeed valid; for example "RIO 2016" will most probably not be understood as a trademark, but as a generic reference to the event. Generic indications need to be preserved as being available – therefore they are not capable of protection
- moreover, it should be noted that the trademark owner may only take action if the sign in question is used (i) in the course of trade, (ii) in relation to goods and services and (iii) if such use impairs any function of the trademark. Thus, the non-commercial use is generally unproblematic, whereas commercial use may trigger certain risks if a trademark function is negatively affected (which, however, will usually not be the case if #Rio2016 is used in a descriptive manner to make a reference to the Olympic Games);
- finally, the impairment of a trademark function may be justified by fundamental rights – eg freedom of speech (when reporting about the event).
So what is this actually all about?
The threats in this respect are widely undifferentiated and mostly exaggerated. However, it is indeed risky if a company creates the wrong impression of being an official sponsor or having other special connections to the event or to the organiser – such an impression could theoretically also be created by using respective hashtags. Apart from that, the organiser will take action against free-riders who use well-known Olympic-signs for no other reason than exploiting thereputation and attention value of the Olympic Games (considering that such value to a large extent is created by the organiser of the event).
Whether making a reference to the event in the course of trade is still legal or already considered unfair (exploitation/obstruction/misleading), can only be assessed on a case-by-case basis. However, anybody who tries to use the reputation and attention value of a major event like the Olympics for his/her own commercial purposes, without being an official sponsor, has to be prepared for a balancing act.
This article first appeared on http://lawmeetssports.at/ .