If you’re one of the billions of people around the world who followed the 2018 Winter Olympics in PyeongChang, South Korea or the Summer Olympics in Rio de Janeiro, Brazil in 2016, you saw some a wide array of spectacular performances. In PyeongChang, the American women’s hockey team win over Canada, clinching gold medals, which is something they had not managed to do in 20 years. Meanwhile, 17-year old Chloe Kim snowboarder took home a gold medal, after winning the women’s halfpipe, where she landed a near-perfect score of 98.25. In Rio, the takeaway moment for Americans was Simone Biles confirming her spot as the world’s best gymnast.
In addition to such striking levels of athleticism, you may also have noticed a flood of social media posts using Olympic-ralted hashtags – from #Rio2016 and #PyeongChang2018 to #Olympics and #TeamUSA. Given that the respective Olympic Games had both been dubbed the “most watched and talked-about Games on social media yet,” this isn’t surprising. What may be, though, is the silence of most companies regarding the games.
Whether on television or the internet, the vast majority of businesses are have to walk a fine line when it comes to their advertising activities in connection with the Olympic Games – whether in conjunction with promoting their own products or even just saluting their national teams. The reason for such strict rules is rooted in U.S. trademark law and other laws around the world created solely to protect the Olympics, and the International Olympic Committee (“IOC”)’s aggressive tactics when it comes to its rights.
Olympic properties under lock and key
The IOC, which organizes the Olympic Games, owns many Olympic-related trademarks – commonly referred to as the “Olympic properties.” These include the interlaced ring symbol, flag, anthem, motto, emblems, mascots, the word “Olympic” and other Olympic-related terminology for use on an sweeping array of products and services in various countries across the globe.
In the U.S., alone, the IOC’s registered trademarks include the Olympic rings, torch designs, the words “Olympic,” “Paralympic” and “Pan American,” as well as any other word or symbol that suggests an association with the USOC, the American team or the Olympic Games themselves. A recent search of the United States Trademark Electronic Search System reveals more than 200 trademarks, including “Olympian,” “future Olympian,” “road to Rio,” “rumble in Rio,” “train like an Olympian,” “let the games begin” and “go for the gold.”
In addition to relying on national trademark laws to protect its valuable assets, the IOC has also obtained unique, heightened protections that do not extend to other companies. First, a 52-country international agreement guards the interlaced ring symbol against commercial use without the IOC’s consent. Each signatory nation can receive a portion of the revenues generated domestically if the IOC does consent to specific uses of the symbol. Between the 1988 Seoul Games and 2004 Athens Games, more than $300 million was generated in licensing royalties, some of which went to the host countries.
Second, countries that host the games often create new, special laws to safeguard the Olympic properties above and beyond other existing laws. These laws prohibit certain marketing tactics by companies that are not official sponsors. These new laws typically provides much broader protection than basic trademark law and makes it easier to stop unauthorized activities. One day before Rio de Janeiro was chosen to host the 2016 Olympic Games, Brazil enacted the Olympic Act; it includes language that specifically protects the Olympic properties from unauthorized uses.
Don’t cross the IOC
Like the National Football League, which regularly and aggressively enforces its rights in the “Super Bowl” trademarks, the IOC is similarly notorious for its aggressive protection of the Olympic properties. Its stated purpose for this fierce vigilance stems from a desire to make sure “the integrity and value of the Olympic properties are respected.”
This stance also extends to country-specific Olympic organizations. The United States Olympic Committee (“USOC”), for example, has stated that it is intensely protective of its Olympic properties because it does not receive federal money to support athletes; it is left to generate funds primarily through licensing, sponsorships and partnerships based on the properties. Unlike in other countries, American Olympic athletes are not financially supported by the government. There are no comprehensive statistics about how much these athletes get paid from the USOC, but media report their salaries are paltry. (One study found that half of elite American track and field athletes make less than $15,000 a year).
Fierce patrolling of the Olympic trademarks has led to significant clashes between the IOC, USOC and the public. In perhaps the most famous American case, the USOC successfully sued San Francisco Arts & Athletics, Inc. in 1982 to stop it from using the word “Olympic” in its Gay Olympic Games. The USOC has also threatened lawsuits against and forced name changes for the Ferret Olympics, Rat Olympics and Olympets, among others.
So, who can actually use Olympic properties legally? Regular people, news entities and official sponsors are in the clear. TV companies paid more than $4 billion to broadcast the 2016 Olympic Games. The summer games’ 11 official sponsors were poised to make more than $9 billion in marketing revenue, and much of this value comes from keeping everyone else out.
Depending on how they are using the Olympics marks, other businesses and brands, including an athlete’s individual sponsors, may be severely restricted. The IOC did change its rules this year to allow athletes, for the first time, to tweet about their unofficial sponsors and do generic commercials that do not refer to the Olympics or use any Olympic properties. Olympic track star Allyson Felix, for example, has tweeted her ad for Bounty paper towels in this manner.
But despite the IOC’s aggressive tactics, unofficial sponsors and other businesses might also be in the clear. While the IOC may have trademark registrations for an array of Olympics-related terms, including ”Olympic,” it does not have the power to control all uses of the term. Just as the National Football League cannot prevent companies from using “Super Bowl” in a descriptive (i.e., non-trademark) manner, the same is true for the IOC and its Olympics marks.
Cease and desist your tweets
Even with these changes, the IOC and USOC make it difficult for non-sponsoring businesses. Just weeks before the 2016 Olympic Games began, ESPN revealed that the USOC sent reminder letters to businesses that had endorsement deals with Olympic athletes, but which are not official sponsors of the games. The letters reiterated that such companies “may not post about the Trials or Games on their corporate social media accounts,” including using “hashtags such as #Rio2016 or #TeamUSA.” In addition, the IOC asserted that unless the company is news-oriented, it is not allowed to speak about Olympic results, share photos taken at the Olympics, or retweet or share anything from official Olympic social media accounts.
Oiselle, an athletic wear company, is one unofficial sponsor that found itself at odds with the USOC. It received a takedown letter from the USOC after posting a photo of Kate Grace, a runner with an Oiselle endorsement deal, when she won the 800-meter race at the summer trials. According to the company’s CEO, such behavior is frustrating for smaller companies who contribute to individual athletes but cannot afford to be an official Olympic sponsor – that club is limited to 11 deep-pocketed multinationals including McDonald’s and P&G. It also harms athletes without big endorsement deals, who could better capitalize on their success if the boundaries were relaxed.
Shontavia Johnson is a professor of Intellectual Property Law at Drake University. (Edits/additions courtesy of TFL)