The opening ceremonies for the 2018 Olympic winter games take place Friday, February 9, but competition has already begun. In addition to competitions on the ice and slopes, there are competitions among brand owners. Official sponsors of the Olympic games pour lots of dollars into exclusivity, promotions, and advertisements related to the Olympics. And sometimes the competitors of those sponsors engage in ambush marketing.
But what about marks related to the Olympics themselves?
The marks surrounding the Olympics receive extra special protection. As regular readers of this blog know, in the United States, one obtains some common law rights in trademarks through use. Obtaining federal registration greatly strengthens those rights. And once a mark is deemed famous within the meaning of the Lanham Act, it may be protected against dilution. But there is yet another form of protection, afforded to only a very select few marks. These marks have statutes that specifically protect them.
Congress has given the United States Olympic Committee (the “USOC”) the exclusive right to make commercial use of certain marks, including OLYMPIC, OLYMPIAD, CITIUS ALTIUS FORTIUS, and other marks related to the Olympics. The USOC protects its statutory right zealously, and has a WEBSITE that identifies logos, words, and phrases it owns or has the exclusive right to control. Part of the website is dedicated to informing the public about permitted and unauthorized uses of the USOC’s intellectual property. As explained on the website, the USOC’s funding comes from sponsorships, so it has an interest in controlling use of the marks to maintain and obtain future sponsors. The USOC may seek civil remedies available to trademark owners under the Lanham Act against unauthorized uses of words and symbols related to the Olympics. The USOC has authority to permit contributors and suppliers to use the marks.
The USOC may even consent to third party registration of marks that include one or more of the terms restricted by the statute. The USOC has done this on some occasions. For example, it permitted the French soccer club, Olympique Lyonnais, to register the mark OLYMPIQUE LYONNAIS (& design) and use it in connection with the soccer club and related merchandise that had been used in the past. However, on most occasions when the USOC is consenting to third party registration of a mark containing a term protected by the statute, the consent relates to an application filed by the International Olympic Committee (the “IOC”). The IOC has filed applications in the United States based on foreign registrations owned by the IOC and then has assigned (most of) the US applications to the USOC.
If you were to file a trademark application that includes a term related to the Olympics, like OLYMPIAD or CITIUS ALTIUS FORTIUS, you would receive an office action citing to the statute above and presenting it as a complete bar to registration. Without consent from USOC, you would likely be out of luck.
But there are some exceptions to the statute. Notably, anyone who used the restricted words or symbols for lawful purposes prior to 1950 is not restricted from continuing to use them. Also, the term “Olympic” is not prohibited when it is not used with other insignia protected by the statute, it refers to naturally occurring geography that received its name prior to 1998, the and use is primarily limited to the western part of Washington state.
So enjoy the Olympic games, but maybe look elsewhere for the inspiration for your next branding campaign.