On June 22, 2007 the federal Olympic and Paralympic Marks Act received Royal Assent. The new legislation is designed to prevent both unauthorized use of the Olympic or Paralympic trade-marks and logos, and the creation of "misleading business associations" in the Olympic context, by broadening the scope of protection and strengthening available remedies. The Act aims to safeguard the substantial goodwill attached to the Olympic and Paralympic Games, and their associated trademarks and logos (the "Olympic Brand"), and addresses the issue of "ambush marketing."
Ambush marketing is a practice by which non-sponsor firms attempt to profit by associating themselves, or their brands, with the Olympic Brand. This decreases the value of sponsorship agreements to paying sponsors, and thus is harmful to the event organizers as it may reduce the amount of sponsorship funds that can be raised.
Section 3 of the Act broadens the scope of protection for the Olympic Brand by prohibiting the unauthorized commercial use of a large number of Olympic or Paralympic-related marks. The section also prohibits the use of confusingly similar and translated versions of such marks. The Act defines Olympic or Paralympic Marks broadly to include fifty-eight marks, listed in in two schedules – Schedule 1 is permanent, whereas Schedule 2 is set to expire on December 31, 2010. Some of the marks listed in the two schedules include the following: OLYMPIC; OLYMPIAN; FASTER, HIGHER, STRONGER; CANADA 2010; VANCOUVER GAMES; and WHISTLER 2010. Section 3 completely prohibits use of the Olympic or Paralympic marks, but then exempts a number of users and uses from the general prohibition, including: parties with written consent of an organizing committee (i.e. official sponsors), trade-mark owners or licensees who meet certain prior-use criteria, public organizations (i.e. government, universities, etc.), certain commercial uses that are descriptive in nature, and usage by the media. Another significant exception allows for qualified Olympians to use, or authorize others to use, certain of the Olympic Marks – including OLYMPIAN and OLYMPIC – where the usage of the marks is in reference to the individual’s participation in the Olympic games.
Section 4 of the Act prohibits any person from directing public attention to their business in a "manner that misleads or is likely to mislead the public into believing that" their business, wares, or services are endorsed by, or associated with, the Olympic Brand. Further, the Act establishes that evidence of such a misleading business association may be drawn from certain uses of the seventeen words listed in Schedule 3, examples of which include: GAMES, 2010, 21st, 10th, GOLD, SILVER, BRONZE, and VANCOUVER.
The remedies available for contravention of either of the foregoing prohibitions are set out in section 5 of the Act. Section 5 gives a reviewing court the discretion to make orders as appropriate in the circumstances, including orders for injunctive relief, recovery of damages, recovery of profits, punitive damages, the publication of a corrective advertisement, and disposition of the offending material. Interestingly, if an injunction is sought, it is not necessary to prove that the applicant will suffer irreparable harm. The effect of relaxing the irreparable harm requirement is to increase the speed, and decrease the cost of seeking such an injunction. In addition, section 8 of the Act allows the court to issue orders seizing imported wares that have not yet been released, where distribution of the wares would contravene section 3.
The new legislation can currently be enforced against an infringing party by the Canadian Olympic Organization or the Canadian Paralympic Organization. In addition, official sponsors can enforce the provisions of the Act with the authorization of the appropriate committee.
Going forward, it will be important for official sponsors to have a plan in place to monitor advertising and enforce their exclusive sponsorship agreements against ambush marketing. Conversely, non-official sponsors will need to ensure that their proposed marketing campaigns are compliant with the Olympic and Paralympic Marks Act.