Perhaps no other endeavor has created more community among humankind than sport. It engages us, it inspires us, and it moves entire communities to do all sorts of unusual things, including mass face painting in the local team colors, and the emblazoning of team trademarks and colors on city buildings and structures in support of the local protagonists. Can those activities be harmful to brand protection?
As a trademark lawyer I can offer the observation that branding and sport are as intertwined as any two fields. At least since the early 20th century, if not earlier, sponsorship dollars have ensured that sport could continue and rise to the world stage through radio, then television, satellite, cable and now onto mobile devices for the upcoming 2012 London games– and why not? Across all cultures we seem to have an unending thirst to see whether this one will triumph or that one will fail. But for spectators and business owners it often comes as a surprise that sports brands, and in particular the trademarks associated with famed events such as the Olympics, are owned and controlled –even to the exclusion of the participants– by stake holders whose primary goal is simply to monetize the brand.
In the case of the Olympics, the five rings, the very words “Olympic”, “Olympics”, “Olympiad” and the ancient tag line “Citius Altius Fortius” are not just owned and controlled by the various Olympic committees, but they are protected by a web of law and regulation that, boiled down, severely restricts not only the use of the brands in promotion and advertising but also who can actually refer to the brands and under what circumstances.
Interestingly, protection of the Olympic marks has been the subject of international treaty and national legislation for decades. In 1981, several nations (not the U.S.) entered into the Nairobi Treaty on the Protection of the Olympic Symbol. That Treaty identifies the five-colored olympic rings as the ultimate symbol of the games, and requires nations that sign the treaty to invalidate any attempt to register that symbol and to take steps to enforce against illicit commercial use of the symbol, other than on behalf of the International Olympic Committee.
Other countries, including the U.S. and England have passed legislation protecting the Olympic rings and related marks. Section 110 of the Amateur Sports Act of 1978, 36 U.S.C. §220506 specifically protects indicia of the Olympic games and states that “…any trademark, trade name, sign, symbol, or insignia falsely representing association with, or authorization by, the International Olympic Committee or … [the United States Olympic Committee]” or any simulation of the words “Olympic,” ”Olympiad” or “Citius Altius Fortius” “tending to cause confusion, to cause mistake, to deceive, or to falsely suggest a connection with … [the United States Olympic Committee] or any Olympic activity” is prohibited and can give rise to seizure of goods and fairly significant damages.
England passed its own legislation in the run up to the 2012 summer games– amending its 1995 Olympic Symbol etc. (Protection) Act with the London Olympic Games and Paralympic Games Act 2006, and the London Organizing Committee for the Olympic Games (“LOCOG”) has published nearly 200 pages of guidelines giving voice and reason to the law and regulation around the use of the 2012 Olympic marks. Among other nuggets, LOCOG has clarified that using certain phrases like “supporting the London Games,” or “lighting the flame,” or even just “2012″ in promotions around London likely would trigger liability if they are used in a context that suggests an association or reference to the 2012 Olympics.
Of course, legislating in favor of, and enforcing rights in the Olympic marks allows the International Olympic Committtee (“IOC”) and the various national Olympic organizing committees to market sponsorship opportunities to the highest bidders, and in turn ensure that the Olympic rings and the other Olympic marks are not used in any way that would cause a casual observer to assume that there is an association or authorization to use those marks from the IOC. While the main goals are to protect the perceived sanctity of the official Olympic brands and to to ensure that so-called ambush marketers can’t undercut the valuable sponsorships associated with the games, the practical outcome can lead to bizarre results– with broadcasters, bloggers and and non-sponsoring advertisers often referring to the Olympics as merely “the games,” or some other generic moniker that often leaves the recipient of the message going “huh?”
One implication that is especially thorny in 2012 is how, in our increasingly converged world of advertising, news and social networking, reference to the games might be made on social networking platforms. As Rachel Boothroyd of eModeration (a global social media management agency based in London) points out, this question is largely terra nova and commercial social media platforms and their participants need to be wary of their activities to ensure there are no inadvertent uses of the Olympic marks that might suggest association with the official games of the 2012 Olympiad. Boothroyd notes:
Any commercial social media posting that includes the classic Olympic symbols or the words Olympics, Paralympics or derivations of these should be a massive warning symbol to check. Without the consent of the Olympics authorities, use of these in any commercial social feed that is not covered by any of the Defences …will be an infringement.
In essence, a good rule of thumb to apply is: always avoid the symbols and words connected with Olympics/Paralympics unless it is really nothing to do with the Olympics or it is a genuine facts-only report which is not unfair or suggesting a connection i.e. like this blog.
Whoa. So while you watch the games this summer, and thrill to the likes of Michael Phelps, Usain Bolt and Rebecca Adlington, beware how you refer to those activities publically IF you are doing so in any even remotely commercial context. Commercial entities seeking to attract eyeballs to websites by discussing, referencing or posting about the games or their participants would be well-advised to review LOCOG’s guidelines so as to avoid possible entanglements over the use of the marks.
For what it’s worth, the images in this posting are all licensed!