Court Tosses Company's Bid To Slap Down Olympics Social Media Restrictions Over Jurisdictional Issues

Free Speech

from the get-sued-first,-i-guess? dept

By now everyone should know that the IOC and USOC have completely perverted the concept of trademark law surrounding any mentioning of the Olympic Games. It’s gotten so bad that the USOC has taken to threatening businesses that tweet out congratulatory messages to athletes, even when those businesses supported those athletes getting to the Olympics in the first place. The USOC seems to be under the impression that tweeting about the Olympics as a business is trademark infringement. It’s not. It never was.

Yet those social media guidelines put forward by the USOC still exist and, coupled with the USOC’s appetite for legal threats and lawsuits, that’s typically enough to keep companies from challenging it on the matter. But one carpet cleaning business in Minnesota actually sued the USOC over the social media policy and its violation of that and other companies’ free speech rights. Sadly that company, Zereorez, has had that suit tossed by the court on jurisdictional grounds, with the court essentially telling the company to come back after it’s been sued by the USOC.

Zerorez, based in St. Louis Park, filed suit shortly before the Summer Olympics hoping to clarify whether the USOC could prohibit it from cheering for Minnesota athletes on social media. The company said it wanted to tweet “Congrats to the 11 Minnesotans competing in 10 different sports at the Rio 2016 Olympics!” but could not for fear of a lawsuit by the USOC.

U.S. District Judge Wilhelmina Wright in Minneapolis dismissed the case April 4, ruling that, because the USOC never sued or even threatened to sue Zerorez, the court lacked subject-matter jurisdiction.

Considering this suit was seeking a declaratory judgment that text Zerorez wanted to tweet out, but was afraid to because of the USOC guidelines, was ok, this can be viewed from the outside as a punt by the court. The judge’s order goes to great lengths to outline what satisfies the jurisdictional requirements for a declaratory judgment. To anyone familiar with the USOC’s antics, Zerorez’s suit appears to satisfy them. Where the court disagrees is on the matter of whether or not an actual controversy exists in this case, with that controversy requiring that Zerorez first plan on engaging in what could be viewed as infringing behavior, which its tweet does in the context of the USOC’s guidelines, and secondly that Zerorez has reason to expect to be sued by the USOC. Zerorez’s filing pointed to other cases in intellectual property law in which declaratory judgment jurisdiction was accepted if the defendant had a prior history of filing or threatening to file infringement suits.

Here the court flatly declines to accept that standard, instead suggesting that Zerorez go ahead and get itself sued by the USOC if it wants to then protect its free speech rights.

If news reports of USOC’s letters to other companies warning that only official sponsors of Team USA are permitted to use USOC’s trademarks on their corporate social media channels create an actual controversy between USOC and Zerorez, a company with which USOC never communicated before this lawsuit, then any company that is not an official sponsor of Team USA could bring a declaratory-judgement action against USOC by asserting the same facts. Such a conclusion would eviscerate the actual-controversy requirement.

Here you see the catch-22 that small businesses face in light of the chilling effects of the USOC’s antics. The USOC gets to bully smaller entities less capable of defending themselves in court, but escapes the court when a company wants to get what is plainly free speech content declared legal and non-infringing. The choice left to companies via this ruling is: don’t exercise your free speech rights, or go get sued first and then try to defend yourselves.

Which is beyond unfortunate and trends into being downright sad. If the USOC’s guidelines bastardize trademark law, and they do, then that’s the reason why so many companies would want to seek declaratory judgment that their free speech is kosher. The problem is the USOC, not the fact that Zerorez hasn’t been sued yet.

Filed Under: declaratory judgment, free speech, olympics, social media, sponsorship, standing, trademark
Companies: usoc, zereorez