By Kelly A. Donohue, of Wilkinson Barker Knauer LLP
Over the last several months, we have written about the risks of publishing ads or engaging in promotional activities that refer to the SUPER BOWL® or MARCH MADNESS® without first asking the NFL or the NCAA, respectively, for permission to use those marks. With millions of viewers about to tune into the OLYMPIC® games in Rio this August, we similarly remind our readers that any Olympic trademarks, symbols or other branded content should not be used in advertising and marketing campaigns across any media platforms (on-air, websites, social media sites, in hashtags, apps, etc.) except by authorized advertisers. And, for the reasons we discuss below, dealing with these marks deserve an Olympic-size dollop of caution.
We’ve written before how Olympic sponsors pay big bucks for the rights to sponsor the Olympics, and to get exclusivity to associate their brands with the games. Thus, the sponsors guard their territory carefully, as do the Olympic organizations whose ability to stage the games is dependent on such sponsorship. Numerous small businesses, nonprofits, and even individuals have been on the receiving end of cease and desist letters, including, for example, a knitting group that used the term RAVELYMPICS for a knitting competition, a charcuterie in Portland named OLYMPIC PROVISIONS, and a Philadelphia sub shop named OLYMPIC GYRO.
The Olympic Committee also has an extra enforcement tool in its arsenal. In addition to the traditional protections afforded under the Lanham Act, as well as those under state and common law, some of the Olympic trademarks are protected by a special statute, designed in order to allow the USOC exclusive rights to control all commercial use of USOC trademarks, imagery and/or terminology in the United States. The protections cover the word OLYMPIC®, the Olympic rings, the word PARALYMPIC®, the Paralympic Agitos, the word PAN AMERICAN®, the Pan American torch, and, any other word or symbol that suggests an association with the USOC or the US team or the Olympic games. So take extra care if you are considering using these marks, as it will be easier for the USOC to enforce a claim against you in court — the statute makes actionable any use of the word Olympic or similar terms tending to cause confusion or mistake, to deceive or to falsely suggest a connection with the USOC or any Olympic, Paralympic or Pan American Games activity. If you still don’t think the USOC means business, check out their 54-page manual of brand guidelines here.
Thus, when a broadcaster is approached by a local car dealer who wants to promote an “Olympics of Savings”, or a local gym that wants to show in its commercial its exercise facilities with the Olympic rings hanging over a bank of treadmills, don’t do it, as there could be consequences far beyond the advertising revenues that you receive. And don’t plan your own WXXX Hometown Olympic festival, as that also could bring issues from the Olympic “police.” This same caution extends to any other branded event like the Olympics — including the Super Bowl, March Madness, many music festivals, and other branded entertainment. Using the logos of sports teams or even colleges in your advertising, without permission, may lead to similar concerns.
Obviously, we are talking about commercial or promotional announcements, not news or talk programming. You are usually safe in using the name of one of these big events in your news coverage, or even the banter between your morning show hosts, critiquing the performance of some athlete performing in the games the previous night. Just don’t go too far with such coverage, for instance by implying that you are an official Olympics news source or something along those lines — which would again be a situation where you are implying an official connection between your company and the branded event.
Finally, just as a matter of legal terminology — the issue is one of trademark, not copyright law. We see many questions about whether “Olympics,” “Super Bowl” or “March Madness” are copyrighted — when, to be technical, the real issue is one of a trade or service mark. But no matter what you call it — be cautious to avoid legal issues.
