Pyeongchang Update: The Hypervigilance of Olympic Trademark Protection

The Opening Ceremony for the 2018 Winter Olympics kicked off in Pyeongchang a little over a week ago. Other than a cafeteria spat between a Canadian and a Russian official concerning Russia’s systematic doping at the 2014 Sochi Olympics, these games have been controversy free—at least in Korea. While not new, one recurring legal issue with each Olympic Games is the International Olympic Committee’s (IOC) hypervigilance in protecting the Olympic brand. This year the IOC has particularly focused its attention on social media, as the following two stories illustrate.

First, Ann Fifield, North Korea beat reporter for the Washington Post, posted a video of the unified Korean team entering the stadium during the Opening Ceremony to both Twitter and Facebook. Twitter took down the post almost immediately after a request from the IOC and Facebook “pre-blocked” the post with an automatic message: “International Olympic Committee Rights Management blocked your video because it may contain content they own.”[i]

The IOC’s next victim was Instagram personality, @BobMenery. International Olympic Committee Rights Management sent Menery a cease and desist letter after the “Man with the Golden Voice” posted a satire voiceover of the team figure skating event. Menery is best known for his hysterically vulgar commentary of NFL, NBA and PGA Tour highlights. True to form, upon receiving the letter, Menery queued up his cellphone to respond to his new adversary: “We called the action like we always do, but the [expletive] International Olympic Committee Rights Management sent us a cease and desist letter. . . . I don’t know if it’s NBC, this Olympic Committee—but we’re in big trouble!” Full video can be seen here (WARNING: video contains offensive language).

To answer your question, Bob, it’s the IOC. The IOC requests all host countries enact specific trademark legislation to protect the Olympic brand. In the United States, this legislation is Ted Stevens Olympic and Amateur Sports Act.[ii] In particular, the Act confers upon the USOC the “exclusive right” to use or license the 5 interlocking rings Olympic symbol, the Paralympic symbol, and the words “Olympic,” “Olympiad,” and “Paralympic.”[iii] More importantly, it empowers the USOC to bring civil action against a person who uses any of the protected symbols, words, trademarks, trade names, signs, symbols, or insignia that would imply association with the IOC, Olympics or USOC.[iv]

The Supreme Court legitimized this protection in San Francisco Arts & Athletics, Inc. v. United States Olympic Committee.[v] Here, the San Francisco Arts and Athletics organization (SFAA) attempted to organize the “Gay Olympic Games” in 1982.[vi] In response, the USOC brought suit to enjoin the use of “Olympic” in the title. In a 5-4 decision, the court upheld the injunction, noting that the IP and brand protection conferred upon the USOC in the Ted Stevens Act helps financially support the USOC and promote the IOC’s goal of developing “physical and moral qualities which are the basis of sport.”[vii]

Beyond the statutory and case law protections, the IOC has added one more weapon to its arsenal, Rule 40. This rule allocates a specific dead period in which any individual or company not explicitly authorized by the IOC or an International Federation (e.g. USOC) may not use images or videos from the Olympics to cover, highlight or even congratulate an athlete’s accomplishment.[viii] In 2016, this rule drew controversy when the IOC used Rule 40 to ban the creation of GIFs.[ix] Overall, this protection amounts to a simple idea: the IOC and USOC have sweeping protections to censor or remove any and all IP that is related, but not licensed to be used.[x] Though completely legal, it begs the question, is it best for the Olympic brand?

While IP and brand protection is a sign of loyalty to networks, licensees and sponsors who have paid a steep price (NBC reportedly paid $7.75 billion in 2014 for the exclusive broadcast rights to six Olympic games from 2022-32), it is also important to recognize the changing nature of sports coverage in 2018. Sports broadcast tycoons like ESPN have had to rebrand due to the rise of Twitter and smartphone apps. Fans are accustomed to streaming breaking sports news on their phones, not tuning into NBC every night to watch reruns of events that have already happened. Consumers depend on social media for instant news, highlights and laughs.

Especially for younger Americans, going after Bob Menery is like going after Barstool Sports—it only fuels the fire and brings more attention to his brand. While he may not be a traditional news source, in one week, 265K of Menery’s 668K followers viewed his epic rant. So, while the IOC and USOC may not see Bob Menery as the ideal voice of the Olympics, the world is trending in his direction of sports coverage, not NBC’s. Maybe it is time for the IOC to rethink these sweeping protections and let Menery call the action. It will make the Olympics more popular among millennials, who don’t have time (or want) to plop down on the couch at 8PM every night for the next week and a half.

[i] Mike Masnick, Twitter & Facebook Want you to Follow the Olympics . . . But Only if the IOC Gives its Stamp of Approval, TechDirt (Feb. 9, 2018, 7:39 PM), https://www.techdirt.com/articles/20180209/14220739200/twitter-facebook-want-you-to-follow-olympics-only-if-ioc-gives-stamp-approval.shtml.

[ii] 36 U.S.C. §§220501-12, 220521-29 (2016).

[iii] Id. at §220506

[iv] Id.

[v] 483 U.S. 522 (1987).

[vi] Id. at 525.

[vii] San Francisco Arts & Athletics, at 530.

[viii] USOC Rule 40 Guidance for Olympic Winter Games Pyeongchang 2018 and IPC Image Policy for Paralympic Winter Games Pyeongchang 2018, USOC (Oct. 25, 2017), https://www.teamusa.org/Athlete-Resources/Athlete-Marketing/Rule-40-Guidance; see also Chanel L. Lattimer, Lord of the Rings: The Olympic Committee’s Trademark Protection, IP Watchdog (June 7, 2016),  http://www.ipwatchdog.com/2016/06/07/olympic-committee-trademark-protection/id=69739/.

[ix] Mark Walton, Rio 2016: Want to make Olympic GIFs? Not so fast, says IOC, ARS Tecnica (Aug. 5, 2016, 7:45 AM), https://arstechnica.com/tech-policy/2016/08/rio-2016-olympics-bans-gifs/.

[x] See Krista L. Cox, International Olympics Committee Only Wants You to Share Content it Approves, Above the Law (Feb. 15, 2018, 4:30 PM), https://abovethelaw.com/2018/02/international-olympics-committee-only-wants-you-to-share-content-it-approves/.

 

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