#RIO, #SUPERBOWL, #FAIRUSE?

Knobbe Martens
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Knobbe Martens Olson & Bear LLP

It’s Olympics time!  And while most of the news has been about Zika and the conditions on the ground in Rio, brand owners know this as a time when the U.S. Olympic Committee is on the warpath sending notices and cease and desist letters to anyone running afoul of the USOC’s trademark rights.  In fact, the USOC has sent letters to non-sponsor companies, warning them that they may not post about the Trials or Games on their corporate social media accounts or even mention Olympic results.

While the USOC does have broader than your typical trademark protection given the legal rights granted under the Ted Stevens Olympic and Amateur Sports Act (36 U.S. Code § 220506), brands have always considered that typical notions of fair use still apply.  As such, there should be some leeway for brands to discuss the games that does not constitute trademark infringement.  Much like the NFL’s rampant enforcement of use of the term SUPER BOWL, the USCO’s enforcement efforts typically go unchecked. However, not this year.  

Zerorez, a carpet cleaner in Minnesota, has filed a Declaratory Judgment action with the United States District Court District of Minnesota seeking clarity on “its rights to discuss the Olympics in social media and other online forms of public discourse” in social media posts.  Zerorez’s complaint provides sample Tweets that it believes constitute fair use, but run afoul of the USOC’s enforcement efforts:

  1. Congrats to the 11 Minnesotans competing in 10 different sports at the Rio 2016 Olympics! #rioready;
  2. Are any Minnesotans heading to #Rio to watch the #Olympics? #RoadToRio;
  3. There is no substitute for hard work. -Thomas Edison #TeamUSA is a great example of hard work paying off;
  4. Let the rumble in Rio begin! From badminton to BMX, Minnesotan Olympians are at the #Rio2016 Olympics. Go #TeamUSA!;
  5. St. Cloud native Alise Post is an #Olympian competing in the #Olympic BMX events today. Follow her at @alisepost11; and
  6. Good luck to our 11 Minnesota Olympians competing in #RIO2016.

Zerorez has requested a speedy resolution to the matter given that the games open today and close on August 21.  Whether this issue gets resolved in that time frame, or at all, will be interesting to see.  However, brand owners may finally get some clarity on how far they can go in social media messages surrounding events like the Olympics and the Super Bowl.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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