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Hashtag Trademark Infringement and the Social Science of Olympic Branding
If there’s one event that brings nearly the entire world together—sorry, Russia!—it's the Olympics. Held this year in Rio de Janeiro, the financial benefits of playing host are not lost on Brazil. This means that, much like the world's Olympic boxing teams, the International Olympic Committee came out swinging hard against unauthorized marketing associations known as “ambush marketing.” The marketing world is objecting to a particularly aggressive tone from the International Olympic Committee (IOC) for perceived copyright infringement prior to this year's games, including "pre-game” cease-and-desist letters sent to large companies that may be tempted to co-opt Olympic popularity. Some industry pundits have gone so far as to call the IOC “ruthless” in its efforts to protect the “Olympics Brand.” Such ruthless tactics include banning the use of popular hashtags.
So why all the fuss? Why have the IOC and affiliates gone to such drastic lengths to protect its brand? The answer can be found in the Olympic monetization strategy. While 47% of Olympic revenue comes from broadcasting rights, a whopping 45% of the 2016 Olympic Games revenue comes from sponsorships deals from a few global brands, such as Coca-Cola, McDonalds, Samsung, and Visa. In fact, these top-tier sponsors have generated an astonishing $US947m for the IOC between 2009 and 2012. That’s right. The Olympics are not only big business; they’re also a marketing bonanza for the few companies who have put "cash in" to “cash out.” In exchange for their “benevolent” sponsorship, these corporate sponsors are granted worldwide Olympic marketing rights and category exclusivity.
What Is Ambush Marketing?
Although only a few very large companies have marketing rights, the games nevertheless continue to draw worldwide attention and interest not only from fans, patriots, and sports enthusiasts, but from marketers themselves. And sophisticated marketers that either couldn’t financially afford to become one of the elite sponsors of the game or refused to, have resorted to “real-time-marketing” techniques in their eyes to help capitalize on the massive marketing opportunity the Olympics represents for their brand. However, some companies have resorted to “ambush marketing” and these tactics have inspired threatening cease-and-desist letters from the IOC. As may be obvious by its name, ambush marketing isn’t some new marketing fad. It’s been around for a while. Ambush marketing, at least in the eyes of the IOC’s Brand Protection Guidelines, is defined as any “intentional or unintentional attempt to create a false, unauthorized commercial association with a brand or event” (42). In an unintentionally hilarious moment in these guidelines, the committee adds clarification, further defining ambush marketing as the act of “‘jumping on the bandwagon’ of publicity generated by an event without paying anything for the privilege of doing so” (42).
Oh yeah. No joke. This copy really exists. And why is “jumping on the bandwagon” harmful? Oh, because it significantly and directly harms the “investment made by the official partners.” That’s right. Ambush marketers are guilty of cramping Coke and McDonald’s style. It has nothing to do with the IOC’s attempt to profit off a forced “pay-to-play” model. Yup, nothing whatsoever :D.
A classic example of Olympic ambush marketing is seen in this Virgin ad which ran during the 2012 games in London leveraging Olympic track star Usain Bolt:
The guide goes on to explain that the IOC has engaged in various actions to prevent and combat this “harmful market practice.” The best part is that according to these brand guidelines, you don’t even have to utilize protected properties in your ambush marketing campaign to be in violation of Olympic brand and trademark infringement. Indeed, even leveraging the image of athletes who compete in the games may lead to “serious penalties” (43). Uh-huh, that’s right, you don’t even have to reference the Olympics to face penalties. Merely using the image of someone “associated” with the games could get you in big trouble.
What Does this Mean for Social Media Marketing?
Very few of us are or will become one of the elite sponsors of the Olympic games, so most of us won’t be harmed by other marketers ambushing the Olympics. Furthermore, most of us won’t be engaging in specific Olympic ambush tactics ourselves either. Given this, I think the question most content marketers will have, when learning about the draconian enforcement of Olympic protected properties and trademarks is: why should I care? But here’s the thing: these new laws have the potential to affect content marketers specifically and here’s why.
Though it’s no longer necessarily free to post, tweet, 'snap and 'gram advertising-linked articles, blogs and other content on social media, it's still fairly inexpensive for the reach received into a vast and ever-growing pool of active users. Simultaneously hailed as the wave of advertising's future and the last great frontier in clutter-busting audience interaction, even social media couldn't remain immune to boundaries forever. But what happens when the enforcement of these kind of trademarks begin to spread beyond the boundaries of traditional media into social media? Ambush marketing may not be a new marketing tactic, but it takes on new depth when social media marketing is involved.
For example, in an effort to squelch unauthorized associations, new intellectual property law has sprung up and many of those laws were specifically written for the London games. Beyond logo restrictions, any other unauthorized representation that alludes to the Olympics actually infringes on the “association” right. To this end, an act written in 2006 provides a list of words deemed to “trigger” an association with the Olympics. These are all words considered to be generic when used in any other context such as: games, gold, 2012, summer etc. Do you see where this is going? Yes, you guessed right: the IOC has actually trademarked the official hashtags referencing the Olympics, such as #Rio2016 and #TeamUSA.
The IOC #Rio2016 trademark is pretty freakin’ scary for a number of reasons. Hashtags are not only native to social media, they are also an essential tool of social media that existed long before marketers got into the social media game—before the whole social media marketing thing took off. Hashtags first developed on Twitter and then spread to other social networks—Facebook, G+, Instagram, Pinterest, and Vine. Although the original purpose of the hashtag was to make “content” searchable on social networks, over time the hashtag has become the means to start and follow conversations, share breaking news, and develop communities based upon common likes and interests. To be sure, the hashtag is the most popular means of categorizing content on social media.
The Rise of the #Hashtag Trademark and Its Effect on Social Media
But all of this changes when hashtags become intellectual property. In 2010, hashtags began to be registered and the so-called “hashtag mark” was born. What’s more, in an attempt to protect their intellectual property on social media, companies are increasingly filing trademark applications for hashtags.
In fact, between 2014 and 2015, there was a 1257% increase in registered hashtag trademarks. This was undoubtedly influenced by a U.S. Patent and Trademark Office decision in 2013 to add a new section to the Trademark Manual of Examination Procedure on the registration of hashtag marks, marks that are the effortlessly-searchable and infinitely brandable new tools of the SEM age. What’s important to understand is that registration only provides broad protection for the hashtag mark against use by competitors. This seems relatively straightforward, but companies are also able to register a hashtag trademark for a word or phrase that has already become an internet meme. The #ThrowBackThursday hashtag is a case in point. A comedy series producer has already filed a hashtag trademark application for this legendary and immensely popular hashtag.
The predominant number of hashtag trademarks have been registered in the United States.
Unlike typical taglines which are trademarked, but intended to be used primarily by the owner, hashtags are inherently social in nature and were intended to be used and disseminated by social media users themselves, not individual owners. This not only makes policing hashtag marks by companies that own them challenging, but it also has the potential to stifle non-commercial as well as commercial social conversation. Where do you draw the line between protecting your marketing investments and brand properties and stifling legitimate social conversation even when that conversation is commercial and/or between brands? In a Nietzche-esque twist, the searchability of hashtags is also what makes them a huge liability for marketers tempted to sneak some trademarked hashtags under the radar in their own posts. In only a few clicks, they're discovered and slapped with a cease-and-desist from vigilant brand watchdogs like the IOC.
(Mini) Content Marketing Olympic Playbook
Don’t Use Ambush Marketing Tactics
Okay, so what every marketer wants to know is when it comes to the 2016 games what’s off-limits and what’s still in range? Obviously, you can't use protected words and phrases like "The Olympic Games" or "Rio 2016” verbatim—big deal, right? No worries. You can still develop some compelling wordplay or hashtags that don’t explicitly use hashtag trademarks, but still alludes to the Olympics and brings Olympic associations to mind. Not so fast, intrepid marketer. The phrase "Going for the Gold" is a common American idiom, but did you know it's also a trademark owned by the USOC? Using terms like "Olympian" and "Future Olympian" are also off-limits in your campaigns. Yes, even "Team USA" has been claimed—as have any playful takes on "lympics"—mathlympics, aqualympics and so on.
Even if you think you're being clever or safe with your references and associations, for the sake of your company's liability, make sure you check them against a list of off-limits phrases or trademarks—if not for this year's Olympics, then words or phrases that may be attached to the event you're hoping to garner attention from.
Do Amplify Content from the IOC/USOC and Their Partners
Get creative and use the buzz generated by official accounts to help boost your own—share and like their images and posts, adding a comment that your company is cheering them on. This way, you're still getting into the spirit of the event and reminding your audience that you're all sharing an experience, but you're doing so without creating original messages that may accidentally end up afoul of intellectual property rights. If the athlete responds, you've just shored up an impromptu session of influencer marketing without spending a dime.
If you manufacture or produce a product or service that an athlete might make use of, or something that has an interesting tie-in to newsworthy happening during the games, send out a public post or tweet to the athlete that made the news. IB Times reports that "Rule 40"—the longstanding rule that athletes can't wear, promote or display individual sponsorship-linked items during the games—is evolving with certain changes that relax the controls a little more this year, allowing athletes with non-Olympic sponsors to discuss their product(s) during the games, albeit without implicitly linking the two. It's as good a time as any to bend the ear of a famous athlete while coaxing the eyes of all of their social media fans; it could be a very smart move for exposure, well after the games have concluded.
Even if you don't think your product is necessarily a shoo-in connection, don't be afraid to get a little creative with this angle. Perhaps you make a sugary snack that is definitely not part of a balanced diet during training—mention to your athlete(s) of choice that you'd like to send them a care package as a post-games indulgence. Unexpected content from these connections can actually end up being your best bet for capturing audience attention, as it disrupts the norm.
Your Media Method Matters
Sly tricks and nudge-wink attempts to get around obvious copyright issues do more than raise the potential ire of trademark-holders like the USOC—they also tell your audience about your brand—and not in the good way. If you've worked hard to instill buyer trust and positive word-of-mouth recommendations as part of your brand equity strategy, do you really want to risk that progress with a few throwaway connections you shouldn't be making? The "me too" method—or “jumping on the bandwagon” tactic of advertising may give you a quick, broad reach in which to make your case, but it will also say that you couldn't come up with original ideas. If you're going to take a proverbial stroll alongside the buzz generated by a large event, make sure you're contributing something of value to the conversation: echo chambers won't generate interest or conversions in the social media flood of stimuli.
The bottom line is this. If the Olympics have inspired you or your marketing team this year, make sure you tread carefully in your marketing creations, especially in searchable arenas like social media. The IOC and USOC aren't shy about protecting their intellectual property, and the negative press from a misstep isn't worth the temporary bump in audience numbers. Marketing is no longer the wild west, and in a world where hashtags are trademarked, social media is no longer the final frontier of free speech in marketing. Instead of aiming for gold, try targeting some winning organic ideas instead, and post without worrying it will come back to haunt you.
Do you engage in ambush marketing? Do you agree with the IOC's decision that this is a "harmful" practice? Will this stiffle social media conversation? Leave a comment below :)
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