This Summer, Don’t Reach for the Rings9 Aug, 2016 By: Jeffrey D. Knowles, Venable LLP’s Advertising, Po Yi, Jessica Borowick
Last Friday, the largest global sporting event in the world, the Games of the XXXI Olympiad, opened in Rio de Janeiro, Brazil. Through August 21, the world’s attention will turn to Brazil while the world’s greatest athletes compete in more than 300 events. For a marketer, the Olympics are an almost irresistible opportunity to build brand awareness and leverage goodwill. That is why brands such as Visa and Coca-Cola spend more than $100 million to be official Olympic sponsors.
But what can a brand do to realize some “lift” from the games, even if it isn’t an official Olympic or national team sponsor? The short answer: brands should turn their attention elsewhere and stay as far away from Olympic-related marks as possible.
It should not be a surprise that the International Olympic Committee (IOC) and United States Olympic Committee (USOC) are aggressive brand protectors. They police and enforce their rights aggressively, and they are very effective in finding and stopping potential infringers. However, marketers are often surprised how much the legal protections for Olympic-related trademarks in the United States differ from traditional trademark law.
In the United States, a federal statute known as the Ted Stevens Olympic and Amateur Sports Act protects Olympic-related trademarks. The Stevens Act gives the USOC the exclusive right to use and license “Olympic,” “Olympiad,” the interlocking rings, event mottos, and other Olympic trademarks. The USOC licenses the rights to these marks to generate funds to support Team USA, which receives no funding from the United States government.
This act also allows the USOC to pursue the remedies available under the Lanham Act against anyone who uses an Olympic trademark in a way that tends to cause confusion or falsely suggests an association between any Olympic or Paralympic activity and that user without proper consent. This is a lower burden than trademark law generally imposes on regular rights-holders, and it does not include a requirement that USOC show any likelihood of consumer confusion.
Although the Olympics are a marketer’s dream, especially when social media allows brands to create visually rich content almost instantly and seize on the immediacy of an inspirational moment, prudent brands will resist the temptation. The USOC’s ability and willingness to enforce its rights mean that errant brands can end up facing injunctions, monetary damages, disgorgement of profits, and footing the bill for the committee’s attorney fees. If those penalties sound harsh, it’s because the Congress intended them to be. Plus, in addition to legal risk, brands subject themselves to reputational risk when they create an unauthorized association with the Olympics or a particular U.S. athlete or sports team.
Jeffrey D. Knowles and Po Yi are partners in Venable LLP’s Advertising, Marketing, and New Media practice group. Jessica Borowick is an associate in the practice group. She interned for the London Organizing Committee for the Olympic and Paralympic Games, and performed on-the-ground brand protection enforcement during the 2012 Paralympic Games.