Going for (marketing) gold: Advertising law in the summer of sport (Part 2)

This summer, the world of sport will captivate fans worldwide. In our "Going for (marketing) gold" series, we're delving into the essential considerations and legal nuances for businesses looking to advertise to the audiences of these global spectacles while navigating the complex landscape of advertising law.

A chance to be noticed by billions of people in over 200 countries? If only!

The International Olympic Committee ("IOC") knows businesses want a bite out of this year's Olympic and Paralympic Games. But are companies allowed to use Olympic trademarks in their commercial advertising? Well, the short answer is no.

The Olympics of brand exposure

Like any diligent brand owner, the IOC and its host National Olympic Committees ("NOC") take the protection and enforcement of their marks seriously. In an effort to maintain the distinctiveness and goodwill in their brands, these entities can prevent anyone else from marketing in a manner that capitalizes on the goodwill of the Olympic games by creating a false, unauthorized association.

This means that only authorized parties (i.e. those with an official sponsorship) are allowed to suggest any affiliation or connection with the Olympic games and associated marks. In general, protected marks comprise all names, phrases, marks, logos and designs relating to the Olympic games, including, for instance:

  • The famous Olympic rings
  • Designs for its mascots
  • The words "Olympic," "Olympic Games," "Olympic torch," or "Paris 2024"

The reach is far and wide – even the use of hashtags on social media posts or congratulatory posts for athletes can run afoul (stay tuned for our next article on these last points!).

You can't win from the penalty box

Using an Olympic brand without authorization is a violation of the relevant IOC or NOC's exclusive rights in the mark, a consideration that should involve a review of the specific trademark laws in each jurisdiction, such as those pertaining to trademark infringement, passing off, dilution, depreciation of goodwill, and false/misleading advertising.

In short, anyone who tries to promote their business by riding on the coattails of the success and fame of the Olympic games should tread lightly and should be aware that these actions can have serious consequences.

In France, for example, anyone found to infringe any of The French National Olympic and Sports Committee's (CNOSF) trademarks could be subject to criminal sanctions and financial penalties under the French Intellectual Property Code. In particular, as the national Olympic and sports committee for the 2024 Games, France modified its Sports Code to specify that the CNOSF is the owner of the national Olympic emblems, currency, hymn, the Olympic symbol, and the terms "Olympic Games" and "Olympiad."

They have also adopted the ad hoc law no. 2018-202, which specifies that the CNOSF is the owner of the terms "Olympiques," "Jeux olympiques," "Olympiade," "Olympien/Olympienne," "JO" and of the vintage "city+year" (i.e. Paris 2024).

Further, certain NOCs own marks entitled to special status with rights and privileges versus ordinary trademarks. For example, the Canadian Olympic Committee ("COC") – an entity considered to hold a significant degree of Canadian government control and which performs an activity deemed to benefit the public – owns "official marks".

Anyone without the consent of the COC is prohibited from adopting, in connection with a business, as a trademark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for, any of the COC's protected "official marks", such as "Team Canada" and "Canadian Olympic Team", regardless of the associated goods or services.

The focus seems to be on unauthorized third-party commercial or business activities. Rule 40 of the Olympic Charter – which we will discuss in depth in our next article – gives the power to "competitors, team officials and other team personnel who participate in the Olympic Games" to use their "person, name, picture or sports performances to be used for advertising purposes during the Olympic Games."

Avoiding a red card: The DOs and DON'Ts of Olympic marketing

We get it – you're looking to find a spot on the podium of the "marketing Olympics." But beware of going "out-of-bounds"! Here are some quick tips:

  • DON'T use Olympic marks and brands in commercial advertising.
  • DO consider the different levels of marketing and licensing programs linked to the Olympic games at the IOC and NOCs.
  • DON'T make direct reference to the Olympic games in commercial advertising or imply any false association with the Olympic games.
  • DO work with your marketing and legal teams to come up with creative material that complies with all legal rules and does not violate intellectual property rights.
  • DON'T use or apply to register trademarks that are confusingly similar to any Olympic marks.
  • DO your own thing! Consult an IP professional on options to boost your own distinguished brand and reputation.

So make your own kind of music and leave your mark – just maybe not if it involves the Olympic games. In a world with such strict, scrupulous organizations like the IOC and NOCs and these complex, multi-jurisdictional legal issues, it is imperative that businesses build their own brands and consult an IP professional before launching new brand development activities.

For more discussion on how brands tend to associate themselves with major events like the Olympic games, without having secured official rights, see our previous article on ambush marketing here.