If you're one of the billions of people around the world following the 2016 Rio Olympic Games in any form, you're probably aware of its most talked-about sports moments. Simone Biles of the United States (with dual Belizean citizenship) confirming her spot as the world's best gymnast. The Fiji men's rugby team's emotional gold medal win - the first in their country's history. French gymnast Samir Ait Said's horrible leg injury during the men's qualifying rounds.
You may also have noticed a flood of social media posts using hashtags like #Rio2016, #Olympics or #TeamUSA. Given that the 2016 Olympic Games have been dubbed the "most watched and talked-about Games on social media yet," this isn't surprising. What may be, though, is the silence of most companies regarding the games.
Whether on television or the internet, the vast majority of businesses are blocked from nearly any mention of the 2016 Olympic Games - whether in conjunction with promoting their own products or even just saluting their national teams. The reason for this silence is rooted in U.S. trademark law and other laws around the world created solely to protect the Olympics.
As a trademark law professor and director of Drake University Law School's Intellectual Property Law Center, I believe these laws have been stretched too far. As currently applied, it's hard for companies, especially small businesses, to know when their activities are illegal. And it's increasingly difficult to obtain permission to do the right thing.
Olympic properties under lock and key
The International Olympic Committee (IOC), which organizes the Olympic Games, owns many Olympic-related trademarks - commonly referred to as the "Olympic properties." These include the interlaced ring symbol, flag, anthem, motto, emblems, mascots, the word "Olympic" and other Olympic-related terminology. As one might imagine, this list could include hundreds, or thousands, of items. While there is no official count, the IOC provides some guidance regarding permitted uses.
In the U.S., protected trademarks include the Olympic rings, torch designs, the words "Olympic," "Paralympic" and "Pan American" as well as any other word or symbol that suggests an association with the USOC, the American team or the Olympic Games themselves. A recent search of the United States Trademark Electronic Search System reveals more than 200 trademarks, including "Olympian," "future Olympian," "road to Rio," "rumble in Rio," "train like an Olympian," "let the games begin" and "go for the gold."
These trademarks are protected through the same domestic trademark laws that apply to any other entity doing business in a country. Most companies protect their trademarks to identify and distinguish themselves in the marketplace. If anyone uses that protected trademark without permission, a company has to sue and prove that consumers are likely to be confused by that unauthorized use.
But the IOC has also obtained unique, heightened protections that don't extend to other companies. First, a 52-country international agreement guards the interlaced ring symbol against commercial use without the IOC's consent. Each signatory nation can receive a portion of the revenues generated domestically if the IOC does consent to specific uses of the symbol. Between the 1988 Seoul Games and 2004 Athens Games, more than US$300 million was generated in licensing royalties, some of which went to the host countries.
Second, countries that host the games often create new, special laws to safeguard the Olympic properties above and beyond other existing law. These laws prohibit certain marketing tactics by companies that aren't official sponsors. Any new law typically provides much broader protection than basic trademark law and makes it easier to stop unauthorized activities. One day before Rio de Janeiro was chosen to host the 2016 Olympic Games, Brazil enacted the Olympic Act; it includes language that specifically protects the Olympic properties from unauthorized uses.
Don't cross the IOC
The IOC is notorious for its aggressive protection of the Olympic properties. Its stated purpose for this fierce vigilance stems from a desire to make sure "the integrity and value of the Olympic properties are respected."
This stance also extends to country-specific Olympic organizations. The United States Olympic Committee (USOC), for example, has stated it's intensely protective of its Olympic properties because it does not receive federal money to support athletes; it's left to generate funds primarily through licensing, sponsorships and partnerships based on the properties.
Unlike in other countries, American Olympic athletes are not financially supported by the government. There are no comprehensive statistics about how much these athletes get paid from the USOC, but media report their salaries are paltry. One study found that half of elite American track and field athletes make less than $15,000 a year.
Fierce patrolling of the Olympic trademarks has led to significant clashes between the IOC, USOC and the public. In perhaps the most famous American case, the USOC successfully sued San Francisco Arts & Athletics, Inc. in 1982 to stop it from using the word "Olympic" in its Gay Olympic Games. The USOC has also threatened lawsuits against and forced name changes for the Ferret Olympics, Rat Olympics and Olympets, among others.
So who can actually use Olympic properties legally? Regular people, news entities and official sponsors are in the clear. TV companies have paid more than $4 billion to broadcast the 2016 Olympic Games. This year, the 11 official sponsors are poised to make more than $9 billion in marketing revenue, and much of this value comes from keeping everyone else out.
Other businesses and brands, including an athlete's individual sponsors, are severely restricted. The IOC did change its rules this year to allow athletes, for the first time, to tweet about their nonofficial sponsors and do generic commercials that do not refer to the Olympics or use any Olympic properties. Olympic track star Allyson Felix, for example, has tweeted her ad for Bounty paper towels in this manner.
Cease and desist your retweets
Even with these changes, the IOC and USOC make it difficult for nonsponsoring businesses. Just weeks before the 2016 Olympic Games began, ESPN revealed that the USOC sent reminder letters to businesses that have endorsement deals with Olympic athletes but which are not official sponsors of the games. The letters reiterated that such companies "may not post about the Trials or Games on their corporate social media accounts," including using "hashtags such as #Rio2016 or #TeamUSA."
In addition, unless the company is news-oriented, it is not allowed to speak about Olympic results, share photos taken at the Olympics, or retweet or share anything from official Olympic social media accounts.
Oiselle, an athletic wear company, is one nonofficial sponsor that recently found itself at odds with the USOC. It received a takedown letter from the USOC after posting a photo of Kate Grace, a runner with an Oiselle endorsement deal, when she won the 800-meter race at the summer trials. According to the company's CEO, such behavior is frustrating for smaller companies who contribute to individual athletes but cannot afford to be an official Olympic sponsor - that club is limited to 11 deep-pocketed multinationals including McDonald's and P&G. It also harms athletes without big endorsement deals, who could better capitalize on their success if the boundaries were relaxed.
Most American Olympic athletes have day jobs and scramble to make a living while pursuing their sport. While protecting Olympic trademarks helps keep the properties valuable, these aggressive tactics keep companies with real connections to Olympic athletes from participating in the excitement of the Olympic Games. Maybe loosening control a bit would allow more money to get to the athletes themselves. After all, it's their amazing accomplishments that add the real value to the Olympic Games.