While it is common for sports leagues and organizations to be protective of their trademarks, the United States Olympic Committee (USOC) has unique trademark rights over various Olympic-related trademarks that no other American organization has.
The 2020 Summer Olympics will be held in Tokyo in just over a year from now. In preparation for the Olympics, many people will want to get on board the Olympic wagon. Companies and business will want to tailor their advertising to the Olympic viewing crowd. Bars and individuals will want to host Olympic viewing parties. However, much like with the term “Super Bowl,” all of these people need to be careful not to improperly use trademarked Olympic terms, otherwise they can face legal repercussions.
In a normal case of trademark infringement, like one over the use of “Super Bowl,” the trademark owner has discretion over their exercise of their trademark. The NFL, for instance, could send a cease and desist letter and file a lawsuit against someone who uses “Super Bowl” to promote their business (as it often does). Such a lawsuit would be governed under United States trademark law, particularly the Lanham Act. The NFL and other leagues, however, have some discretion over whether they want to take legal action or let some uses slide. Granted, they cannot be too loose with their trademark enforcement, otherwise there exists the possibility that a league can lose its trademark due to dilution.
The United States Olympic Committee (USOC) is the organization that has control over various Olympic trademarks in the United States. The USOC is overseen by the International Olympic Committee. However, there exist important differences between the USOC’s trademark rights and those of private companies. Most notably, there is a separate federal statute, 36 U.S.C. § 380, that governs the USOC’s trademark rights. What does the USOC have trademarks in? According to the statute, they have rights over the IOC’s famous 5 interlocking rings, the USOC’s own emblem, and the words “Olympic,” “Olympiad,” and “Citius Altius Fortius.”
Not only does the USOC have statutory rights to these trademarks, but the USOC is empowered under the statute to enforce its trademark rights. If any person uses the above marks for various commercial purposes or to promote any theatrical exhibition, athletic, performance, or competition without the USOC’s consent, then the USOC shall sue that person for trademark infringement under the Lanham Act. The use of shall is important here: while it is not a strong a verb as must, it still serves to empower the USOC to aggressively enforce its trademark rights.
In addition to its statutory rights, the USOC also has a favorable Supreme Court decision that gives it more power over its trademarks than any other sports league. In San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, the USOC sought to prevent San Francisco Arts & Athletics (SFAA) from using the term “Olympics,” as SFAA sought to organize the “Gay Olympic Games.” After favorable rulings in the lower federal courts, the Supreme Court found that 36 U.S.C. § 380 grated USOC the exclusive right to use “Olympic” and does not incorporate defenses under the Lanham Act. Though SFAA argued that its use of “Olympic” in “Gay Olympic Games” would not create any confusion, the Supreme Court said that this argument has no merit since this would be a defense.
SFAA also argued that the First Amendment prevented Congress from giving USOC exclusive rights to use a generic word like “Olympic.” The Supreme Court rejected this argument, stating that the history and value of the mark allows Congress to grant USOC a limited right to this word. Further, SFAA argued that it was exercising its First Amendment right to convey a political statement by using the phrase “Gay Olympic Games” and that this right overrides the statute. The Supreme Court disagreed, stating that Congress had a broad interest in promoting U.S. participation in the Olympics. Though the statute gave the USOC greater trademark rights than usual, the statute did not violate the First Amendment as it served these legitimate congressional interests without being overbroad.
In addition, SFAA argued that the USOC’s enforcement of its trademark rights was discriminatory and violated the Fifth Amendment. The Court, however, rejected this argument as well, specifically since USOC is a private corporation, not a government actor. Government action is necessary for there to be a Fifth Amendment violation, and USOC’s decisions to enforce its trademark rights are private, not government decisions.
As a result of this decision, SFAA renamed its project and called it the “Gay Games.” The Gay Games have been very successful, and have even collaborated with the Olympics on a number of issues. Beyond the immediate parties, however, the Supreme Court has given the USOC incredibly broad leeway to enforce its statutory trademark rights. While one using “Super Bowl” in a commercial context could at least argue that their use would not cause confusion or was protected by the First Amendment, one using “Olympic” in a commercial context has no right to these defenses.
In the years since this decision, the USOC has become notorious for strictly enforcing its trademark rights. USOC has an entire section of its website dedicated to its trademarks, containing specific instructions as to what uses are permitted and what uses are forbidden in various contexts. The USOC even has a section on social media, which is particularly relevant considering how important marketing on social media is today. This may stray businesses from avoiding mention of the Olympics at all, though there are certain loopholes and phrases that can be used that suggest the Olympics without using the USOC’s marks. This is much like how commercial entities can talk about “The Big Game” without mentioning the “Super Bowl.”
All in all, people need to be very careful around using Olympic trademarks. The USOC not only is vigilant about its enforcement of its trademark rights, but the USOC also has statutory protections above and beyond any other sports league. It would be wise to review the USOC’s trademark guidelines before making that Tweet about next year’s Olympic Games. Otherwise, you run the risk of being subject to a legal marathon.
Photo Credit: Wikipedia
Alex Betschen is a graduate of the University at Buffalo School of Law. He was a student attorney at UB’s Civil Liberties and Transparency Clinic, where he worked on cases involving government disclosure of private information and use of hacking tools. He also served as an Editor on the Buffalo Law Review and is an accomplished musician.