By: Scott Hervey
Without fail, every two years I get a call from a client who wants to incorporate an element of either the Winter or Summer Olympics into a marketing scheme. This year was no exception. One of our clients – a fairly significant company in the wine industry – created a graphic featuring wine rings (think of wine stains made by an overly full wine glass) in the form of the Olympic rings, the London skyline in the backdrop, and the official London 2012 Olympics logo and wanted to use it in promoting wine for sale. Although extremely creative, it certainly would have gotten our client into a jam with the United States Olympic Committee and possibly with the London Olympic Committee.
Under the Ted Stevens Olympic and Amateur Sports Act, Congress granted the USOC exclusive ownership of certain Olympic-related words and symbols, including the name “United States Olympic Committee” and the words “Olympic,” “Olympiad,” “Citius Altius Fortius,” “Pan American,” “Paralympic,” “Paralympiad,” “America Espirito Sport Fraternite” and the International Olympic Committee’s symbol of five interlocking rings. The Act also permits the USOC to authorize its contributors and suppliers to use these Olympic-related words or symbols, and allows the USOC to initiate civil-action proceedings to address unauthorized use. Third party marks that contain the designated Olympic-related words or symbols, or any combination thereof, cannot be registered on either the Principal or Supplemental Register (nor can the matter be disclaimed) and must be refused registration on the ground that the mark is not in lawful use in commerce.
The USOC’s rights are strong and were acknowledged as such by the Supreme Court in San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522 (1987) which involved a suit to enjoin San Francisco Arts & Athletics use of “Gay Olympic Games.” The court noted that the legislative history demonstrated that Congress intended to provide the USOC with an absolute monopoly over the use of the word "Olympic." It does not matter whether any unauthorized use of the word tends to cause confusion, all uses by parties other than the USOC and those they authorize, are prohibited.
The USOC and its international counterpart, the IOC, are extremely diligent in protecting the Olympic marks. Enforcement becomes heightened in hosting cities as the Olympic event nears. This is because Cities that host the Olympic games are required to pass legislation to protect against “ambush marketing” trademark infringement. For example, shortly after London won the right to host to the 2012 games, the British Parliament enacted the London Olympic Games and Paralympic Games Act 2006, which provides for protection against the unauthorized use of the word Olympic and the Olympic symbols. Under the London Olympic Games Act of 2006, no use is too small for scrutiny. According to the Daily Mail, the owner of a florist shop along the torch route was asked to remove tissue paper rings from her shop window, and the owner of a butcher shop was asked to remove sausage links displayed in the shape of Olympic rings. (According to the New York Times, the Olympic sausage rings came down, but the next day up went five interlocking sausage squares. Olympic officials were not amused.)
Why the extreme focus on policing even the most trivial uses? Sponsors. Olympic sponsorships are the second biggest source of revenue for the IOC right behind broadcast rights. Sponsors pay hundreds of millions of dollars to be “exclusive “ sponsors of the Olympic games and Olympic organizers are required to make sure no one gets a free ride.