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Use of Olypic Games in advertising

Use of Olypic Games in advertising

The most prominent sports competitions – the Olympic Games in Rio are still going on. Like every time, also this year the Olympics are extremely popular with almost all Poles, who are – first of all – consumers.  Hence the enormous temptation luring entrepreneurs into tapping at least a bit into the fame and glory of the Olympic Games. Searching through offers of various, not only domestic, entities, one may encounter numerous cases of the Olympic symbol standing proud of a product, an Olympic contestant marvelling at the properties of an item, or a catchy slogan, like “Also you can be an Olympian”. Of course, the above examples are only fabricated for the purposes of the present article, yet it is almost certain that everyone has already come across a number of such promotions. Thus a question arises whether promotional practices like that are legally admissible in the first place? Well, in principle – THEY ARE NOT.

Olympic Charter

According to the provisions of the Olympic Charter, in particular its article 7 point 1, the International Olympic Committee holds all and any rights to the Olympic Games and Olympic properties. Whereas Olympic properties, in the understanding of the Charter, are: the Olympic symbol, flag, motto (“Citius, Altius, Fortius”, which stands for “faster, higher, stronger”), anthem, identifications (including but not limited to “Olympic Games” and “Games of the Olympiad”), designations, emblems, flame and torches. All and any proprietary rights to all the Olympic properties itemised above as well as all rights to the use of them, including but not limited to the use for any profit-making, commercial, or advertising purposes, belong exclusively to the International Olympic Committee. The Committee may license all or part of its rights under the terms and conditions set forth by the International Olympic Committee’s Executive Board (article 7 point 4 of the Olympic Charter).

As follows from the official statement by the Polish Olympic Committee, the Charter: is a set of fundamental principles of Olympism as well as articles and executive by-laws to those articles adopted by the International Olympic Committee (IOC). It governs the organisation, actions, and functioning of the Olympic Movement, as well as it establishes conditions for the ceremonial celebration of the Olympic Games(source: http://www.olimpijski.pl/pl/60,karta-olimpijska.html). Accordingly, it is a kind of agreement among the members of the Olympic Movement.

Now, if John Smith, i.e. the man in the street, is not a member of the Olympic governing bodies or an Olympic contestant, he is not bound to the Charter. Seemingly, that is good news, but, in the situation of John Smith, it does not change anything in fact. Still, the provisions of law, including e.g. the Act of 25 June 2010 on Sport, are binding on him.

Act on Sport

Noteworthy are, in the first place, two provisions of the said Act, namely article 25 section 3 and article 51. Precisely, article 25 section 3 of the Act stipulates that “the Polish Olympic Committee is exclusively authorised to use any whatsoever mark or another designation, comprising the Olympic symbol or incorporating the Olympic symbol as well as the names: Olympic Games, Games of the XXX Olympiad, Games of the XXXI Olympiad, Games of the XXXII Olympiad, Games of the XXXIII Olympiad, Games of the XXXIV Olympiad, Games of the XXXV Olympiad, Olympic Committee, Olympic Team, Olympic Movement.”

Whereas article 51 introduces a punitive clause, according to which whoever, not being authorised to do so, uses for commercial purposes any whatsoever mark or another designation, comprising the Olympic or Paralympic symbol or incorporating the Olympic or Paralympic symbol as well as the names: Olympic Games, Games of the XXX Olympiad, Games of the XXXI Olympiad, Games of the XXXII Olympiad, Games of the XXXIII Olympiad, Games of the XXXIV Olympiad, Games of the XXXV Olympiad, Olympic Committee, Olympic Team, Olympic Movement, Olympic Charter, Paralympic Games, or Paralympic Committee, is subject to a penalty fine (article 51 section 1). Whereas, under article 51 section 2 of the Act on Sport, in the event of committing an offence as defined in section 1, vindictive (also known as: exemplary or punitive) damages may be awarded to the benefit of the Polish Olympic Committee or the Polish Paralympic Committee in the amount of up to PLN 5,000.

What consequences are for using the Olympic Games?

That having been said, the situation is more serious than it might appear. That is not all by any means. Undoubtedly, entrepreneurs, while deploying significant outlays into promotional campaigns, are more interested in liability claims for damages that might be instigated against them. Such claims may be pursued by the International Olympic Committee by way of civil litigation. Those are not only due to the infringement of the said Act on Sport but also such acts as the Intellectual Property Law, the Act on Copyright and Neighbouring Rights, or the Act on Combating Unfair Competition.

Registered olympic trademarks

Unfortunately, not everyone is aware of the fact that the Olympic symbol (yes, those colourful circles) is a registered trademark. That is one of numerous designations with the Olympic topic in the background which are legally protected as trademarks. Before any Olympic Games, the International Olympic Committee makes an application for all graphic images or verbal expressions having any whatsoever connotation with the forthcoming Games to be legally protected in order to ensure the widest possible protection to the Olympic properties. Among examples of trademarks registered for the purposes of the current Games are word marks: “RIO 2016”, “2016”, “THE OLIMPICS”, or figurative and word-figurative marks developed specifically for the purposes of the Olympics in Rio.

Act of unfair competition

The Olympic designations are also protected under the Act of Combating Unfair Competition. The said Act constitutes the legal grounds for making claims for infringement of rights to registered trademarks, as well as unregistered marks being in use. It is also applicable in the case of entrepreneur’s perpetrating so-called “ambush marketing”.

Copyrights

Moreover, all and any figurative and word-figurative trademarks registered for the IOC and National Olympic Committees are subject to protection under the Act on Copyright and Neighbouring Rights. That is because, under article 1 section 1 of the aforesaid Act, a creative work is any manifestation of creative activity of an individual nature, fixed in any whatsoever form, irrespective of its value, designation, and manner of expression.

Thus, creative works include also other unregistered designations, medals, photographs, or any other works commissioned by the International Olympic Committee constituting a creative work in the understanding of the provisions mentioned above.

Sanctions of unlawfull use of the Olympic Games

Consequences of said laws infringement may be really severe. Among them, the most notable are a letter of summons to cease the infringement, demand for disgorgement of unfairly obtained profit, and, in the case of wilful infringement, also remedying the loss caused:

  1. either under the general rules
  2. or by way of a pecuniary payment of an amount equivalent of the licence fee or another applicable compensation.

Moreover, the Court may decide on making a public announcement of the whole or part of the ruling awarded or of the information on the ruling, in a way and to the extent determined by the Court.

Not every reference to the Olympic Games is unlawful

Does it then mean that any reference to the Olympic Games in Rio may have such negative implications? Not necessarily. There are certain exceptions admissible by both the International Olympic Committee and the Polish Olympic Committee. Also, based on the so far court rulings, it may be concluded that sometimes a reference to an important sports event, and this year’s Olympics are such, does not infringe the rights of the International Olympic Committee. There is no general rule, however, which could help make the right judgement. It is necessary that every case should be considered individually, best when based on the opinion of accordingly experienced lawyers.

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Katarzyna Prędota
Legal Counsel