Who may advertise with #Rio2016?

The US-American Olympic Committee recently warned athletes’ private sponsors against using hashtags such, as #Rio2016 #TeamUSA #Olympic #Olympian and #GoForTheGold on social media. The German Olympic Sports Association has since confirmed that they reserve the right to take legal action against non-Olympic sponsors who, without authorisation, use #Rio2016 illegally.

The term "Rio 2016" was registered as a Community trademark by the International Olympic Committee (IOC) in 2010. It is, therefore, also protected as a trademark in Germany. Howev-er, not all use of #Rio2016 is legally inadmissible under German law. Infringement of this trademark occurs under German law when it is used in a way that third parties would likely perceive it as an indication of commercial origin of goods and services protected under the trademark.

#Rio2016 permitted when used in a descriptive way

Using the term as a trademark must be distinguished from using it in a descriptive way, which is generally permitted under German law. Descriptive usage occurs, for example, when the trademark is used in a purely communicative context, as opposed to an economi-cally driven one.

If a company supports or roots for an athlete who is sponsored by the company or if a com-pany expresses its excitement for results achieved during the Olympic Games by adding #Rio2016, under German law the term is merely used in a descriptive way with no infringe-ment of the trademark resulting. In these situations, the hashtag will be understood as a reference to the Games, not as an indicator of origin of the company posting it.

In Germany, a company should not, however, advertise for prize draws or its own products by using #Rio2016 as this could be regarded as commercial usage. The IOC has previously sought extensive protection of the trademark regarding a variety of goods and services, in-cluding advertisement, entertainment for or in relation to sports events, and online gam-bling.

Generally unproblematic are cases, in which an individual uses #Rio2016 in posts on his or her private Twitter account, as this situation lacks a commercial act.

Validity of the registration of #Rio2016 is disputable

In Germany, trademark infringement in the case of #Rio2016 is not a clean-cut case; in 2006, the German Federal Court held that the German word mark "Fussball WM 2006" ("Football World Cup 2006") lacked distinctive character and refused its continued registration, causing the owner to surrender its trademark. Whether "Rio 2016" could have been registered as a trademark in the first place, despite presumably lacking distinctive character, is questionable.

If you would like more information as to the situation under German law, please contact Dr. Martin Gerecke and Nikola Ebbecke. If you would like information more widely as to the legal position on ambush marketing, please contact your usual local CMS contact.