August 4, 2016
The 2016 Olympic Games® in Rio are set to officially open this Friday, August 5, 2016.[1] Every four years, for a glorious 16 days, the world gathers in unison to watch athletes compete for the gold medal in a multitude of games in varying degrees of popularity. The world also gathers to sell you things. Lots and lots of goods and services will be offered through fancy advertising. Many of these ads will exploit the famous Olympic rings and pictures of the Games in association with certain products. “Official sponsor of the Olympic Games” being a key phrase.
Why is this? It is because the Olympic Games are serious business. Not surprisingly, the use of Olympic-themed trademarks is equally serious business. Even in the United States, these trademark rights supersede U.S. trademark law in many areas and are granted a “privileged status.”[2] The International Olympic Committee (IOC) owns most of these trademarks and it is hyper-vigilant in its enforcement of the uses of these marks.
What constitutes an Olympic trademark? Why are they given special privileges? Let’s explore!
The Business of the Olympic Games
The true commercial value of the Olympic Games first became apparent with the 1984 Games in Los Angeles. The Games have always been treated as sacred, even during the 1936 Games in Berlin, under the watchful eyes of the Third Reich. Nevertheless, with the terrorist attacks during the 1972 Games in Munich, the boycotts of the 1976 and the 1980 games, it was difficult to find eager and willing host nations for the Olympics during those eras. In fact, it took 30 years for Montreal to pay off its debts from hosting the 1976 Games. Los Angeles was the only viable candidate for the Games when it was chosen in 1978. The only other city that suggested even a slight interest in hosting was Tehran, which declined to bid after domestic political crises emerged that year.
Los Angeles transformed everything. The 1984 Games were a private sector free-for-all in marketing everything. It also worked, even in spite of the Soviet boycott. Not only did the L.A. Games turn a profit, but it set the standard for the business model for all future events. It relied almost entirely on private funding and sponsorship, reduced or eliminated the use of public tax dollars, and eventually generated approximately $200 million in profit. Of course, Los Angeles already had a lot of the necessary infrastructure in place, only two new venues had to be constructed, and the USOC took advantage of television and licensing rights to generate revenue. The 2016 Rio Games, sadly, are unlikely to match the financial windfall of those Games. Not that it is stopping Rio from licensing everything and continuing the trend of making the Olympic Games a branding war among private corporate sponsors. It has even issued a full-scale 54 page “Brand Protection Guidelines” document for the 2016 Games.
Of course, the 1984 Games were not the first to embrace marketing and commercialization. Bruce Jenner’s famous WHEATIES® box appearance was eight years prior, after his record-breaking performance at the Montreal games. In fact, it appears that the first instance of Olympic sponsorship dates back to 1896, by a Greek shipping magnate that underwrote those Athens Games. The first sponsorship battle between shoe companies was not even between Nike and Reebok – it was between Adidas and Puma in 1968. And with marketing, branding, and commercialization goes trademark rights. And infringement. And counterfeit products.
Olympic Trademark Rights
The IOC owns exclusive trademark rights to the Olympic properties through the Olympic Charter. According to Rule 7 of this Charter, the IOC has sole and exclusive right to govern and control the uses of the following marks and properties: “The Olympic symbol, flag, motto, anthem, identifications (including but not limited to “Olympic Games” and “Games of the Olympiad”), designations, emblems, flame and torches, [defined in Rules 8-14], and any other musical works, audio-visual works or other creative works or artefacts commissioned in connection with the Olympic Games by the IOC.”[3]
This is the Olympic symbol™, if you were wondering:
It is governed by Rule 8 on its own. Pursuant to Rule 8 of the Charter: “The Olympic symbol consists of five interlaced rings of equal dimensions (the Olympic rings), used alone, in one or in five different colours. When used in its five-colour version, these colours shall be, from left to right, blue, yellow, black, green and red. The rings are interlaced from left to right; the blue, black and red rings are situated at the top, the yellow and green rings at the bottom in accordance with the following graphic reproduction. The Olympic symbol expresses the activity of the Olympic Movement and represents the union of the five continents and the meeting of athletes from throughout the world at the Olympic Games.”
The color choices are not accidental or random. The Olympic symbol is also heavily governed by the IOC. It is most certainly not in the public domain for all to use. The IOC and the USOC will strongly enforce its rights and pursue any unauthorized uses, in most any context. To put it plainly, the answer to “can I use the Olympic rings?” is almost certainly “no” unless you have acquired a license through the IOC/USOC or you are deemed an official sponsor of the Games. Here is a link for those that want to acquire a license to use these marks.
What about Fair Use?
Certainly there has to be a safe zone for “fair use” of Olympic trademarks, right? Not necessarily. While I am likely safe in using these marks and logos in the context of educational purposes or commentary, the moment these uses are associated with any commercial product, good, services, or an implied sponsorship or affiliation – this is grounds for infringement. Accordingly, [disclaimer] this article is for informational and educational purposes only. I am not selling anything, not even ads. [/disclaimer]
The word “Olympic,” meanwhile, may be used to identify a business or goods or services if:
- Such use is not combined with any of the Olympic trademarks;
- It is evident from the circumstances that the word Olympic refers to the naturally occurring mountains or geographical region of the same name, and not to the USOC or to any Olympic activity; and
- Such business is operated, or such goods or services are sold and marketed, in the state of Washington, west of the Cascade Mountain range, and marketing outside this area is not substantial.[4]
This does not provide a lot of wiggle room for businesses seeking to exploit the spirit of the Olympic Games for commercial purposes. The USOC has even begun a campaign to stop businesses from using the word “Olympic” or similar marks on Twitter during the games. Yes, a full-scale #TwitterBan may be in effect for those that are not blessed by the hand of the IOC as official Olympic Games sponsors. That is how limited “fair use” is in the context of the Olympics. Even descriptive uses by well-intentioned business entities are borderline unlawful.
How are Olympic Trademarks Enforced?
Typically, in the United States, the Lanham Act sets forth a “likelihood of confusion” standard for whether the use of a word, term, name, symbol or such constitutes an infringement.[5] This standard typically requires a balancing of various factors, including any evidence of actual confusion in the market, the similarity of the marks, the sophistication of the consuming public, the uses of the mark by third parties, among other factors. This does not apply here.
Pursuant to U.S.C. § 220506, the USOC (through the IOC) has the exclusive right to use Olympic marks in the United States, in addition to USOC specific marks and logos such as the following:
The USOC has kindly distributed a branding guideline for the authorized uses of these marks.
In the event the IOC/USOC believes an infringement is being made, it does not need to demonstrate a likelihood of confusion by the offending mark. The Olympic marks statute provides the following standards in its place:
(c) Civil Action for Unauthorized Use.—Except as provided in subsection (d) of this section, the corporation may file a civil action against a person for the remedies provided in the Act of July 5, 1946 (15 U.S.C. 1051 et seq.) (popularly known as the Trademark Act of 1946) if the person, without the consent of the corporation, uses for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition—
(1) the symbol described in subsection (a)(2) of this section;
(2) the emblem described in subsection (a)(3) of this section;
(3) the words described in subsection (a)(4) of this section, or any combination or simulation of those words tending to cause confusion or mistake, to deceive, or to falsely suggest a connection with the corporation or any Olympic, Paralympic, or Pan-American Games activity; or
(4) any trademark, trade name, sign, symbol, or insignia falsely representing association with, or authorization by, the International Olympic Committee, the International Paralympic Committee, the Pan-American Sports Organization, or the corporation.[6]
Notice the difference? Instead of “likely to confuse” the standard for Olympic marks is “tending to confuse” – a much lower burden of proof. The USOC also has lower evidentiary burdens and does not need to show that an unauthorized use of the Olympic trademarks is occurring in connection with goods or services similar to those on or in connection with which the USOC has previously authorized use. It has the effect of presuming confusion through unauthorized use.
Okay, so infringement is easy to prove, but the damages have to be trivial, right? There cannot be much economic harm from a simple use of “Olympic Games” on Twitter by an non-sponsor, right? Well, since the 1984 Games and in conjunction with the U.S. Trademark Counterfeiting Act of 1984, penalties have become increasingly more severe. This can include jail time and fines ranging in the millions of dollars.[7] For counterfeit products, no surprise, but these are also subject to seizure by the USOC. To top it off, you get to pay the USOC’s attorneys’ fees, too!
Of course, unless you are an individual or business maliciously intending to infringe Olympic marks through a large-scale counterfeiting program, these million dollar fines and ten-year jail sentences are unlikely. But on the small scale, the USOC is hyper vigilant about enforcing its trademark rights in all context, including those seemingly innocuous retweets by a corporate entity that is not a sponsor. Even a few small words on a runner’s jersey by a non-sponsor have invoked the wrath of the IOC and the USOC. While an entity may sponsor a particular runner/athlete – if that entity is not also an Olympic Games sponsor, there is a blackout period, to the extent that it cannot even publicly congratulate its sponsored athlete for winning an “Olympic” medal!
Not even the NFL has that kind of power in enforcing its “Super Bowl” trademark.
Conclusions?
The Olympic Games are a wonderful exhibition of human ability and competition. It brings the entire world together in unity. But it is also a big business, with sponsors paying in excess of $100 million for certain rights to participate in the Games. The famous Olympic symbol is one of the strongest trademarks in the world, with rights and protections exceeding that of even Coca-Cola, McDonald’s, or Apple. If you want to get in business with the Olympics, you should probably invest in being an official sponsor. The alternatives are slim and the penalties are severe for all forms of unauthorized uses.
Be careful using the word “Olympic” this month – for it is a strongly protected and regulated trademark.
[1] Some preliminary events, such as women’s soccer, kicked off Wednesday night.
[2] See generally IOC Olympic Charter, Rule 7 (August 2015).
[3] Rule 7(4) of the Olympic Charter.
[4] See generally http://www.inta.org/TrademarkBasics/FactSheets/Pages/ProtectionofOlympicTrademarks.aspx.
[5] 15 U.S.C. § 1125(a) (Lanham Act § 43(a)).
[6] 36 U.S.C. § 220506(c) (emphasis added).
[7] 18 U.S.C. § 2320(b) (“if an individual, shall be fined not more than $2,000,000 or imprisoned not more than 10 years, or both, and, if a person other than an individual, shall be fined not more than $5,000,000…”).
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