This Is the Main Event for Olympic Trademark Lawyers, Tooby
“Can I use the Olympic rings?” tops the list of frequently asked questions on the International Olympic Committee’s website. Those five rings—along with the flame and words such as “Olympic,” “Olympiad,” and “Paralympic”—are registered trademarks owned by the global organizing body and upheld by national committees.
In fact, any nation that aspires to host the Olympics must first pass statutes protecting the trademarks; Russia’s took effect in 2007, while the U.S. law has been in place since 1978. “We try to tell people that the word ‘Olympics’ is not just a word that means competition,” says Kelly Maser, an intellectual-property attorney with the U.S. Olympic Committee in Colorado Springs whose job includes fielding the steady stream of requests from those seeking to use the sacred word.
Over the two-week run of the Winter Games in Sochi, lawyers like Maser are almost as busy as the athletes. Her nine-lawyer team in Colorado has counterparts employed by other national committees, and then there’s the IOC’s own legal team working nonstop to keep abreast of the ways Olympian intellectual property can be used and misused. Here’s what the lawyers are looking out for:
1. Be a fan, not a brand. “We like fans to be excited about the games,” Maser says. So tweet, post, and pin about the event, the athletes, and the medals as much as you like. Sharing images with Olympic logos or posting messages on Twitter using the protected words aren’t violations of the trademarks, so long as the posts are sent from personal accounts and are not meant for commercial purposes.
2. Make a tribute T-shirt, just don’t sell it. You’re feeling inspired after Sage Kotsenburg’s gold-winning moment in the slopestyle event, so you decide to make a limited-edition hand-silk-screened T-shirt of the snowboarder with the Olympic rings and “Sochi 2014” displayed on his competitor’s bib. The Olympic lawyers won’t come after you with quite the same vigor reserved for a major retailer like The North Face, but the shirt still infringes protected trademarks. Selling it on Etsy or some other marketplace makes it all the more likely to come to the attention of the legal teams.
“They start with a letter,” says James Bikoff, a trademark attorney and longtime legal adviser to the IOC, “and try to secure voluntary compliance.” It’s unlikely such a scenario would escalate to criminal charges. Removing offending items and posting some type of correction—a disclaimer, say, that there is no official association with the U.S. Olympic team—are the remedies most often requested, Maser says.
3. Ambush marketing comes in all shapes and sizes. Efforts by companies to associate themselves with the games can be seemingly deliberate and sophisticated—witness Subway’s ad campaign. But accidents can happen. PepsiCo found itself in that situation last week when online monitors for the IOC found a page on the “What’s Now” section of the company’s website filled with unauthorized uses of Olympic trademarks and imagery. The outside ad agency that created the page for the company didn’t realize it was violating the trademarks, according to Maser, and the content went live without the usual internal review; Pepsi did not respond to requests for comment. “That’s part of the problem with living in this fast-paced digital age,” Maser says.
4. Lawyers don’t just protect trademarks, they also protect sponsorships. Unauthorized marketing draws quick action from IOC lawyers to safeguard the contracts with existing sponsors. “If somebody can just use a symbol or a name or something simple to associate with the games, then they’re trading on what a sponsor pays money for,” says Bikoff. Coca-Cola’s sponsorship of the Olympic Games dates back to 1928, and today the company is one of 10 exclusive worldwide sponsors in the Olympic Partner program with deals valued at upwards of $100 million for multiyear rights. So the lawyers won’t hesitate to prevent a rival like Pepsi from overstepping.
5. Counterfeiting has moved to the Internet, and so has the policing. A big part of protecting trademarks has historically been about going after the manufacturers and merchants of counterfeit merchandise: the cheap, unofficial T-shirts and baseball caps sold by street vendors. Today, says Bikoff, the knockoff action has largely moved online. The IOC has an entire unit dedicated to monitoring the Web for any sign of trademark abuse, and it enlists outsiders such as Bikoff in this effort.
The worst offenders are online vendors that try to mimic the domain names of official sites. Maser and her team are dealing with a site selling counterfeit Team USA hockey merchandise—near-exact replicas of team jerseys and other apparel. The URL of the official team website is usahockey.com; the website with the counterfeit goods uses teamusahockeyshop.com.
With several complaints sent to the official USA Hockey organization by customers claiming merchandise they paid for was never received, Maser says the site potentially is engaging in fraud, too. “We can’t get to the people behind it,” she says, although the legal team does know the merchandise is coming from China. Enforcing the trademark here will be difficult. “It’s outright counterfeit, but another level of it,” Maser says. “We’ll pull out all legal options on this one.” Still, filing a legal action in the U.S. seems unlikely since the lawyers can’t identify anyone who appears to be running the unofficial site.