The Battle Over Olympic Hashtags

This article was originally published on TheBusinessOfSports.com (7/26/2016)

Earlier this week, there was an article posted on AwfulAnnouncing.com that discussed how the USOC is trying to prevent non-sponsors from using the “official” Olympic hashtags (h/t to @BobMcKameyand @HevCollart for sharing/commenting on the story). There are a few other similar articles also out right now:

• The Guardian: US Olympic committee bullying unofficial sponsors who use hashtags
• Darren Rovell on ESPN: USOC sends letter warning non-Olympic sponsor companies

The question of who actually owns a hashtag is not a new topic, and while I learned they can be trademarked, this still feels questionable at best to me. My personal feeling is that they are inherently linked to the functionality of Twitter’s application, so if anyone could own one, it would be Twitter.

Of course, that position is not in the best interest of any property that charges millions of dollars for the rights to use their intellectual property, including trademarks, logos and the like. Since we also know that sports drives more conversation and content on Twitter than any other topic, it makes sense that they’re paying much closer attention to anything resembling use of IP in these channels. But can they truly claim that all these various Olympic hashtags are trademarked?

To me, a bigger question is, will Twitter go along with this idea of blocking “unauthorized” use of hashtags by brands that aren’t official sponsors? This is a dangerous area for Twitter, who ultimately wants as much conversation as possible on their platform, but the more they actively curate and block content, the more upset users get (there is another active “first amendment rights” controversy going on with Twitter recently, but I’m going to leave that one alone for now).

Twitter has also taken a more active role as a media rights holder with their new streaming deals, which in turn creates more pressure for them to actively enforce the partnerships of their properties and content providers. However, doing that too much will actually devalue their entire communication channel. If it’s truly a trademark violation to use these official hashtags without being a partner, then what about individuals creating and sharing content? If I tweet a link to something I write with the hashtag #Rio2016 (which I will do as soon as I finish writing this post) and an official partner doesn’t like my article, am I personally violating their trademark?

According to IP lawyer Mark Terry (via The Guardian article link above), I wouldn’t be:

“Trademark infringement occurs when another party uses a trademark and confuses the public as to the source of a product or service that’s being used in commerce. That’s not what happens when you use a hashtag. I’m not selling a product or service, I’m just making statements on an open forum. How else do you indicate you are talking about the Rio 2016 Olympics without saying #Rio2016?”

Sure, if a brand says something like “Official Partner of #Rio2016” when they aren’t, that’s infringement. But the Olympics themselves are a massive news event that the entire world will be discussing for months, so to think that brands will willingly decide to NOT be a part of the conversation is simply naive. Additionally, nothing stops brands or consumers from creating new hashtags, and if a good hashtag is created at the right time around the right topic, the active conversation will shift to use the new hashtag.

Ultimately, this story all boils down to properties and brands trying to protect themselves against any form of guerilla marketing. And the best way to do that isn’t around veiled threats and fighting over hashtags, but to make the most use out of the IP rights you have and create the most engaging content across all the various channels in ways that unofficial partners simply don’t have the access to do.

(Side note: If I’m completely off on this and protecting hashtags really becomes a thing, I need a good lawyer to help me with my claim to #sportsbiz, and I have proof!)