The use of a trademark as a hashtag on social networks sometimes causes problems for companies who feel that their intellectual property rights have been infringed.
Opposition to an unrestricted and free use of the hashtag, in this case #Rio2016, also originated from several Olympic Committees in the context of the 2016 Summer Olympic Games in Rio.
The firm position of the Olympic Committees
During the Summer Olympic Games of 2016, the hashtag “#Rio2016” was obviously widespread across the Internet and on various social networks. Many Internet users and companies have frequently used the hashtag to support and encourage their national team.
However, not everyone was enthusiastic about this practice. In fact, several Olympic Committees, including Germany and the US, banned the use of the hashtag by non-Olympic sponsor companies. The Committees considered that the companies were not entitled to use the hashtag since, according to the Committees, such use is an act of counterfeit which infringes their intellectual property rights.
In the United States, the Committee served notice to a women’s ready-to-wear company, Oiselle, to remove a picture posted on Instagram of a track and field athlete of the national team who is also the brand ambassador, and under which the caption included the hashtag #RoadtoRio. The founder of the trademark, Sally Bergeson, has also reacted to the controversy by posting on her blog an article about the rule that is causing this prohibition, “Rule 40“. The rule, enshrined in the Olympic Charter states that “except as permitted by the IOC Executive Board, no competitor, team official or other team personnel who participates in the Olympic Games may allow his person, name, picture or sports performances to be used for advertising purposes during the Olympic Games.”
However, the decision was not unanimously nor positively welcomed. Some companies in the United States defended themselves by suing the Committee and condemned a ridiculous and far too strict restriction policy.
In Europe these prohibitions also seem absurd. In reference to the judgment of the Court of Justice of the European Union on September 22, 2011 involving Interflora and Marks & Spencer, the use of a trademark as a Google AdWord can be an act of counterfeit if that use has adverse effects on the functions of the trademark, that is, on the specific image which the company wants to create in the mind of the consumer. One can draw a parallel between Google AdWords and hashtags and consider that only a hashtag which adversely affects the functions of the trademark can be prohibited.
Yet, if the company simply wishes to support its country in the context of the competition and if no business link is established between the Olympic Games and company (i.e. if the hashtag is not used in relation to the goods and services of the company), then it is entitled to use this hashtag.
The hashtag #Rio2016 therefore cannot be protected in the same manner as the Olympic rings symbol for example, because it is not a trademark or a design within in the strict legal sense of the term. Thus, its use should not be as limited as some Olympic Committees are arguing.