Capitalizing on the Super Bowl or Olympics Without Landing in Legal Trouble

Opinion: Companies have a responsibility to police their valuable brands or risk devaluing their intellectual property

Businesses should always operate on the side of caution
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February 2018 marks a huge month for sports and, as such, there’s an inclination for brands to take advantage of the hype surrounding events like the 2018 Winter Olympic Games in Pyeongchang, South Korea.

There’s a reason why companies are willing to shell out millions of dollars just to mention Super Bowl LII in one advertisement, so it can be tempting to get caught up in the buzz with a timely marketing campaign.

Before moving forward with that clever TV spot, businesses must consider the potential legal fallout.

Why is this necessary?

A trademark typically protects names, words, slogans and symbols that identify a business or brand and distinguishes it from others. For instance, the National Football League has trademarked a number of phrases, particularly Super Bowl, in order to protect consumers from confusion about whether an event or product is affiliated with or sponsored by the league.

The International Olympic Committee and United States Olympic Committee have taken on similar tactics to uphold trademarks and safeguard the unique character of the Olympic Games and their identification—namely, the Olympic Rings.

Trademark protection for the logo that identifies major events like the Summer and Winter Games deters unlicensed merchandisers from creating counterfeit apparel and protects the value of the brand. This protection extends to official promotional partners and sponsors—valuable marketing that reportedly can cost around $100 million per four-year cycle with the Olympics.

What are the rules?

Each Olympic cycle, the USOC releases brand guidelines with the “cans and cannots” clearly listed out. This includes updated terms, logos and the event location (i.e., Pyeongchang 2018, Rio 2016).

For the Super Bowl, steer clear of mentioning the event by name, using images and logos or labeling any product as being specially for the Super Bowl.

If a company disregards the rules, regardless of the intent, it can expect a warning letter demanding immediate removal of the content—as was the case with Oiselle, an apparel company that posted pictures of a sponsored athlete who had qualified for the 2016 Summer Olympics.

While it might seem like an overreaction, the fact is that companies have a responsibility to police their valuable brands or risk devaluing their intellectual property.

Does this impact social media?

Expanding advertising and marketing campaigns to reach audiences on social media platforms has become standard practice. Language is often more conversational on platforms like Twitter and used to share more personality, even wit. However, it doesn’t mean that the rules and legal boundaries can be relaxed.

If a corporate account were to retweet an image from the Games or even write #Olympics in a post, it is in violation of the trademark, which was the case for Oiselle. Your business must think twice before wishing an Olympic or Super Bowl athlete good luck online or even making a clever pun.

Can a business still be a part of the conversation?

While the guidelines around these major sporting events seem to limit a business’ input in a very prominent conversation, there are still ways that brands can jump into the mix. It requires a little creativity to establish a workaround, but companies, big and small, have been able to get involved. This includes referring to the Super Bowl as “the big game” or “the football championship” and the Olympics as “the big event.” Even Stephen Colbert poked fun at the strict restrictions by covering the “Superb Owl” instead.

The rules are strict, so you can expect them to be heavily monitored. Most major organizations are using advanced anti-piracy technology to prevent, track and take action against the influx of unauthorized content.

Just because it is easy to get caught up in the excitement of the sporting atmosphere, that doesn’t make it any less important to avoid the dangers of trademark or copyright infringement. Businesses should always operate on the side of caution in order to protect their brand and longevity.

Chas Rampenthal is general counsel of legal help provider LegalZoom.