Is this a stand for free speech or a chance to get some free advertising? Either motivation behind a lawsuit by a carpet cleaning franchise in Minnesota against the U.S. Olympic Organizing Committee would be the American way.
This week, an attorney for Zerorez Minnesota filed suit in federal court seeking to overturn the ban on companies using Olympic trademarks on social media.
What trademarks? Hashtags.
Since 2013, more than 1,000 companies have sought trademark protection for their names and products when used as a hashtag.
Mucinex, for example, has successfully trademarked the hashtag #blamemucus. If you use the hastag in a tweet, you better not be in the phlegm business, my friend. (Trivia: Nobody has used #blamemucus in a tweet since April)
Zerorez Minnesota isn’t exactly taking the William Wallace approach to its stand for freedom. It hasn’t tweeted anything about the Olympics. Its lawsuit says only it has thought about posting some like these:
* Congrats to the 11 Minnesotans competing in 10 different sports at the Rio 2016 Olympics! #rioready
* Are any Minnesotans heading to #Rio to watch the #Olympics? #RoadToRio
* There is no substitute for hard work. -Thomas Edison #TeamUSA is a great example of hard work paying off
* Let the rumble in Rio begin! From badminton to BMX, Minnesotan Olympians are at the #Rio2016 Olympics. Go #TeamUSA!
But many of those hashtags are claimed by the USOC as trademarks, so there’ll be no whipping badminton fans into a frenzy of carpet cleaning.
It doesn’t appear that the carpet cleaning company has been directly threatened with sanctions.
In its lawsuit (available here), the company reports only that ESPN says that some businesses have been threatened under the USOC’s not-so-veiled advice.
[C]ommercial entities that are not Team USA sponsors should not be posting about the Trials or Games on their corporate social media accounts. This restriction includes posting photos from the Olympic Trials and the use of Olympic trademarks in hashtags such as #RIO2016 or #TeamUSA.
The USOC recognizes that the nature of social media encourages participants to talk about current events and hot topics.
But unless a company or organization’s primary business is disseminating news and information, the company’s social media platforms (e.g., Facebook, Twitter, SnapChat, Instagram, etc.) are commercial in nature, serving to promote the company or brand; to raise the brand’s profile and public opinion about the company or organization; and/or to increase sales, membership or donations.
Thus, any use of Olympic or Paralympic trademarks or terminology by a non-media company – whether in traditional advertising, on its website, or through social media – is considered commercial and is prohibited without the USOC’s permission.
[U]nless you are a news agency or an official USOC partner, I would ask that you refrain from posting about the U.S. Olympic Team Trials or the Rio 2016 Olympic Games from your corporate
social media accounts. Instead, we encourage you to show your support for the U.S. Olympic and Paralympic Teams by following Team USA on social media and posting about the Team and the
Games from your individual or personal social media accounts.
“Speech is not commercial in nature merely because it is on a business’s social media account,” Aaron Hall, CEO of the JUX law firm, says in his filing.
“They’re doing what many would call trademark bullying and trying to chill free speech because many are afraid to infringe the Olympic trademarks,” Hall tells Gizmodo.
Eric Goldman, a Professor of Law at Santa Clara University, tells the BBC that the USOC approach is overly aggressive and ridiculous.
“I think that trying to tell companies that they can’t use the hashtag #Rio2016 or #TeamUSA in their tweets, most of the time they’re going far afield of what the law permits and when companies use the ambiguities of trademark law to try and squelch socially beneficial conversation, I call that bullying.”
How silly can this get? Oh, please. This is America. It can get pretty silly.
Just ask Sally Bergesen, who runs the clothing company Oiselle, which sponsors some Olympic runners. She posted an Instagram photo of one of her athletes after she made the Olympic team. But because the photo showed trademarked Olympic rings, she got a cease-and-desist letter from the USOC, which said people could think Oiselle is an official sponsor of the U.S. Olympic team.
But this is America, where there’s always a loophole. And Bergesen found it. It’s not a violation of trademark if individuals tweet or post with trademarked hashtags; only if businesses do.
So she encouraged her fans to keep posting images, and use whatever hashtags they wish.
Fans, you are the loophole! Now and during the #Rule40 blackout period July 27th – Aug 24th, follow and share the love for these women and all athletes heading to the Big Event…with the Five Circles in the Southern Hemisphere. Use the tag #freebird16 to encourage their journey, share how they inspire your goals, and help fly their flag. Currently three O Olympians: @fastkate 800m, @yocorrofeliz Marathon (for Ecuador!), @michtacoffey Race Walk. Details plus rad fan-banners at www.oiselle.com/blog. #rule40 #freebird16
Bergesen says she’s doing a lot more to help Olympic athletes in the United States than the USOC is. She estimates it costs her $300,000 to help each athlete get to Rio.
“The USOC contributed probably about 1% of that cost,” she tells the BBC.
It’s unlikely a federal judge in Minnesota will put the Zerorez Minnesota on the fast track.
But there’s still plenty of time. The badminton competition doesn’t begin until next Thursday.