July 24, 2012
Below is a brief guide summarizing the governing law and offering guidance in the form of “do’s” and “don'ts” for the upcoming games.
The International Olympic Committee owns the following Olympic properties:
|The Words (their plurals, translations, and anything similar to them)|
|The Symbols (and anything similar to them)|
- The International Olympic Committee (IOC):
- The International Paralympic Committee (IPC):
|The Mottos (their translations and anything similar to them)|
- The IOC: Citius, Altius, Fortius and Faster,
- The IPC: Spirit in Motion
|The Olympic Anthem|
|Muscial work composed by Spiro Samara|
|The Olympic Flame and Torches|
Marks and fonts specific to the London Olympics include:
Governing Law in the United States and Internationally
Several different bodies of law govern use of Olympic marks depending upon the geographic location of the user.
- Under the International Olympic Committee’s Olympic Charter, each National Olympic Committee protects the Olympic properties in its country.
- In the U.S., 36 U.S.C. § 220506 gives the U.S. Olympic Committee (USOC) the exclusive right to use: 1) the name United States Olympic Committee; 2) the symbols of the International Olympic Committee; 3) the U.S. Olympic Committee emblem; and 4) the words Olympic, Olympiad, Citius Altius Fortius, Paralympic, Paralympiad, Pan-American, and America Espirito Sport Fraternite.
- The United Kingdom created similar perpetual rights with the Olympic Symbol etc (Protection) Act of 1995.
- In 2006, the United Kingdom created the London Olympics Association Right (LOAR). This right, while similar to the perpetual Olympic association rights, applies only to the London Olympics and expires on September 11, 2012. The London Organizing Committee of the Olympic Games (LOCOG) enforces this right.
Each country hosting an Olympics may also enact specific legislation governing the use of Olympic properties.
Restrictions on Use of Olympic Marks
A person infringes the LOAR if a representation of any kind, used in the course of trade and in relation to goods or services, suggests an association between the London Olympics and the person making the representation, the goods, or the services.
However, if the person has permission of the LOCOG as an official sponsor, supplier, or otherwise, its uses will not infringe the LOAR. Uses in the course of trade include:
advertising, business papers, product packaging, and signage. Images, graphic designs, sounds, or words (spoken or written) qualify as potentially infringing representations. An association includes,
among other things: contractual relationships, commercial relationships, corporate or structural connection, and financial or other support for the London Olympics. For purposes of determining whether a particular representation infringes the LOAR, courts consider certain combinations of expressions. Combinations likely to result in infringement are: two of the words from List A or one word from List A used with one or more words from List B. However, a person can still infringe the LOAR without using any of the words listed below. The important consideration is whether the representation, considered as a whole, creates an association with the London Olympics.
|Two thousand and Twelve
Additional representations the LOCOG anticipates will create an association include use of:
- An Olympic style torch or flame
- The five colors of the Olympic symbol (blue, black, red, yellow, & green)
- Designs closely resembling the official designs of the 2012 Games
- Images of Olympic venues
- XXX or 30th (the 2012 Games are the 30th Olympiad)
- Advertising for running
shoes: “Helping athletes
win gold and the London
- Hotel advertisement in all
London Airports and
stations: “X Hotels
welcomes you to London.
Hotels in every Olympic
- “Olympic Update - Brought
to you by Brand X”
|Not Likely Infringing
- Advertisement for running
shoes: “Helping athletes
- Factual reference on a bed
& breakfast website:
“Located next to the
Olympic equestrian venues”
- Unsponsored supplemental
reports of broadcasts
about the Olympics
The examples above were taken from the LOCOG’s Brand Protection guides. To date, no court cases have adjudicated the issue. The guides, however, provide insights into the LOCOG’s position on what representations will or will not infringe the LOAR.
A representation will not infringe the LOAR if it does not suggest an association between a person, good, or service and the London Olympics. A person does not suggest an association with the London Olympics when incorporating a representation in a context in which the London Olympics are substantively irrelevant. Such representations cannot be promotional or commercial and must also accord with honest commercial practices. Key factors in determining whether statements qualify for this exemption include:
- whether the statement is true or accurate; whether it will cause confusion, misunderstanding, or mislead the public;
- whether the person making the statement takes unfair advantage of the value in the London Olympics; and
- whether the games are relevant to the context of the statement.
Simple, factual statements like the bed & breakfast example above would likely qualify as uses that do not create an association.
Publishing or broadcasting a report or information about the London Olympics will not infringe the LOAR. Under this defense, newspapers and other news sources may issue supplements about the London Olympics and advertise that they will do so. This defense does not apply to any advertisements contained in the published reports or aired at the same time as the broadcast. Additionally, if a particular brand produces or pays for a report or broadcast, this defense will likely not apply.
Incidental uses in literary or artistic works also do not infringe the LOAR. A movie set in London at the time of the London Olympics or a book about an athlete competing in the London Olympics would qualify for this defense.
Dealing in goods that have been put on the market in the European Economic Area with LOCOG’s consent does not infringe the LOAR. This defense will likely only apply if the goods have not been changed or impaired after entering the market. Re-selling genuine London Olympics memorabilia will not infringe the LOAR, but selling goods that have been altered with other Olympic logos or damaged will likely infringe the LOAR.
The LOAR does not affect rights existing before March 30, 2006. This defense covers a representation continuously used in the same way prior to 2006, corporate and business names, and any preexisting design rights and trademarks. A café that has sold an “Olympic burger” since 1978 would qualify for this defense, but a new business, “2012 London Games Café” would not.
Use of a person’s own name and address also do not infringe the LOAR. Uses indicating quality, quantity, value, geographical origin, or time of production will also not infringe the LOAR, provided the uses accord with honest commercial practices. A coin producer could advertise gold coins minted in London in 2012 without infringing the LOAR. Use of a representation necessary to indicate the intended purpose of a product or service, such as a service assisting people in avoiding traffic during the London Olympics, would also not infringe the LOAR.
National sponsors cannot advertise in the United Kingdom without the LOCOG’s permission. Similarly, British national sponsors cannot advertise outside the United Kingdom without permission from the relevant National Olympic Committees.
TV Coverage in Bars/Restaurants
The LOAR does not itself prevent establishments like bars from showing coverage of the London Olympics, although an entertainment or other license may be required because the International Olympic Committee owns and sells broadcasting rights to the Games. Most statements made in this context will likely qualify for the “honestly made statements” exception discussed above, but if a statement creates association with a brand or a misleading impression, it will likely infringe the LOAR. Likely Infringing
Not Likely Infringing
- “Watch the Olympics live here” combined with X BRAND BEER on a flyer
- “Watch the Olympic Games here with a cold beer. Live coverage all day.”
Advertising Near Venues
The London Olympic Games and Paralympic Games (Advertising and Trading) (England) Regulations 2011/2898 prohibit non-sponsors from advertising or trading in designated “event zones” during event periods. Event zones include Olympic venues, but not the route of the torch relay. Event zones will also exist along the Road Cycling and Marathon routes, as well as in the water for Sailing events. The Regulations do not cover essential advertising, such as bus and rail timetables. Ordinary shop signs and similar habitually-used advertising that does not derive special promotional benefit from the Games are also exempt.
Ticket Promotions and Touting
The unauthorized use of Games’ tickets in product promotions or for other commercial purposes may violate the tickets’ terms and conditions, perpetual Olympic association rights, and the LOAR. Only sponsors have the right to run ticket promotions, and the LOCOG plans to take a firm stance against non-sponsors using tickets in unauthorized promotions. Offering discounts for London 2012 ticket holders will likely infringe the LOAR.
Ticket touting, an offense created by the 2006 London Olympics Association Right Act, prohibits selling, advertising, or offering to sell London 2012 tickets for profit. Selling tickets as part of a hospitality package will likely fall under this offense. As of June 2012, just under 200 people have been arrested in the United Kingdom on ticket touting charges.
Use of Olympic Athletes
Under Rule 40 of the Olympic Charter, no competitor, coach, trainer, or official participating in the Olympic Games may allow his person, name, picture, or sports performances to be used for advertising purposes during the Olympic Games unless a waiver is granted. The Blackout Period for the London Olympics runs from July 18th – August 15th.
The U.S. Olympic Committee will examine advertisements from a competitor of a U.S. Olympic Team sponsor more closely than other advertisements in order to protect the sponsor’s investment. Magazines and other periodicals should pay special attention to these rules when compiling an edition that will be released during the Games. Generally, Olympians should be removed from company websites during the Games. For social media sites, references to Olympians made after the end of June 2012 should be removed, but older posts may remain on the site because readers will not likely review older posts.
Athlete Endorsement of Non-Olympic Sponsor
Rule 40 applies during the Blackout Period. Outside the Blackout Period, advertising and websites should focus on the athlete rather than the Olympic Games. Non-sponsors cannot use OLYMPIC, LONDON 2012, or other Olympic marks without the USOC’s permission. Non-sponsors should submit advertisements with biographical references to the athlete as an Olympian to the USOC for approval.
Penalties for Violations
Depending on the nature of the use in question, use of Olympic properties may infringe both the LOAR and national Olympic association rights. Remedies for infringing the LOAR include damages, injunctions, and accounting of profits. Courts may also order that the infringing goods be delivered to the LOCOG, destroyed, or forfeited to any person the court thinks fit. Remedies under 36 U.S.C. § 220506 parallel traditional Lanham Act remedies. Ticket touting and violations of the Advertising and Trading Regulations are punishable with a £20,000 fine.
Click here to listen to a podcast featuring Finnegan partner Douglas A. Rettew discussing brand control as a key strategy for leveraging the lucrative London 2012 Summer Olympics official sponsorships offered to advertisers. The podcast examines brand protection, the evolution of ambush advertising, and why Americans may be seeing a different set of ads this summer than the ones shown to international audiences.
Copyright © Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm's clients.