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February 5th, 2014
LET THE GAMES BEGIN - Last Minute Tips for Marketers to Avoid Running Afoul of Olympic Committees
Now that the "Big Game" is over, marketers are turning their attention to the upcoming Winter Games in Sochi, Russia. While it is tempting to comment on and associate with big worldwide events as they are happening, bear in mind that there are rights holders that enforce and protect their rights to these events. In the case of the Winter Olympics, if marketers do not have an official relationship with the International Olympic Committee or a country-specific Olympic Committee (such as the USOC), then they must take care to avoid running afoul of these Committees when referencing the Olympics in social media and other marketing communications.
The various national Olympic Committees spend a lot of effort protecting their trademarks, so marketers should take great care to avoid using the marks such as the following:
- The Five Rings design
- WINTER GAMES
- TEAM USA
- SOCHI 2014
- ROAD TO SOCHI
- ROAD TO RUSSIA
- SOCHI.RU 2014 (design)
- LET THE GAMES BEGIN
- Unlike other rights holders, the USOC has "super" trademark rights granted to it under the Ted Stevens Olympic and Amateur Sports Act (see 36 U.S.C. § 220506). This statute gives special protection to the OLYMPICS and Five Rings design marks and any other mark or symbol that falsely represents association with, or authorization by, the International Olympic Committee or USOC. Because of this, the USOC does need not prove a likelihood of confusion when these marks are used, which is the standard for trademark infringement. Rather, the USOC just needs to prove is that a defendant used those specially-protected Olympic trademarks for a commercial purpose without its authorization.
- As noted above, the USOC has a number of other registered trademarks as well (which do not have the "super" trademark protection). Even without the additional protection, the USOC maintains strong trademark rights, and is well known for actively enforcing their rights in them.
- Some marketers try to use an obvious euphemism or other descriptive phrase to refer to an event that it does not sponsor (e.g. the "Big Game") in order to avoid these trademark issues, but while using a phrase such as "the multi-national winter sporting event taking place in Russia during February" may not be deemed trademark infringement, it could lead to a public naming and shaming by an Olympic Committee. For example, non-sponsor Lululemon Athletica unveiled a line of "Cool Sporting Event That Takes Place in British Columbia Between 2009 & 2011 Edition" clothing just prior to the 2010 Winter Games in Vancouver and was subsequently scolded by the Canadian Olympic Committee.
- Even the use of wintry imagery or general references to winter, which may not be deemed a trademark violation, can still result in a challenge by the applicable Olympic Committee if there is a concern that consumers will be confused. In another example from the 2010 Winter Games, Subway ran a television advertisement featuring Olympic gold medalist Michael Phelps "swimming" his way over a map towards the mountainous region of northwest Canada, with a voiceover stating "where the action is this Winter." Although no legal claim was brought, the USOC publicly admonished Subway for the advertisement.
- Finally, don't forget that even if a non-Olympics sponsor has an endorsement agreement with a particular Olympic athlete that is competing in these Winter Games, it cannot distribute marketing materials (and must take down such materials that have already been distributed) featuring such athlete due to IOC Rule 40, which imposes a blackout period for the use of an Olympic athlete's name or picture for marketing purposes by non-Olympics sponsors. Such period began last Thursday and runs through February 26, 2014.
- In sum, marketing around an Olympic Games is difficult to do for a non-Olympics sponsor. Not only are the trademark rights given to the applicable Olympic committees broad, but the rights holders are vigilant in protecting these rights. Non-sponsoring marketers should be mindful when crafting marketing materials, including social media materials, that directly or indirectly reference the 2014 Winter Games.
- If you have any questions about this alert, or about any other trademark, sports, or advertising law issues, please contact Christopher R. Chase at (212) 826 5568 or firstname.lastname@example.org, Mary Sotis at (212) 705 4878 or email@example.com, Brian Murphy at (212) 826 5577 or firstname.lastname@example.org, or any other member of the Frankfurt Kurnit Advertising, Sports, or Trademark Groups.
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