The 2018 Winter Olympics in Pyeongchang, South Korea have begun. For sponsors of the International Olympic Committee ("IOC"), the US Olympic Committee ("USOC"), or National Governing Bodies within the USOC, marketing materials and activation plans have been set for a while. For marketers who are not sponsors of any of the foregoing entities, producing materials aimed at associating with the Winter Olympics could run afoul of several laws, rules, and restrictions prohibiting so-called "ambush" marketing. Non-sponsor marketers seeking to associate themselves with the upcoming games, particularly those considering running social campaigns, should keep the following in mind:
1. Avoid using the words "Olympic" or "Olympiad," the Olympic rings and other official IOC logos, or any simulations of these marks. Because of the Ted Stevens Olympic and Amateur Sports Act (see 36 U.S.C. §§ 220501 et seq.), the USOC does not need to prove a likelihood of confusion (the standard for traditional trademark infringement) for use of the foregoing; rather, the USOC just needs to prove that an unauthorized user used these marks for a commercial purpose without its approval.
2. Avoid using other USOC-enforced marks, such as: TEAM USA, PYEONGCHANG 2018, ROAD TO PYEONGCHANG, GO FOR THE GOLD, or LET THE GAMES BEGIN. Although these are not specifically protected under the Olympic and Amateur Sports Act, the USOC can enforce them via traditional trademark enforcement.
3. Avoid using brand-relevant "-LYMPICS" terms, such as AQUALYMPICS, MATHLYMPICS, or BEEROLYMPICS, against which the USOC also enforces its rights.
4. Avoid producing brand-relevant simulated versions of the Olympic rings - such as using onion rings, tires, or donuts in place of the official Olympic rings. During the 2012 Summer Olympics in London, the local organizing committee sent cease and desist letters to a local butcher who placed Olympic ring shaped sausage links in his window display and to a local florist that created a window design made of flowers in the shape and color of the Olympic rings.
5. Avoid using combinations of images and text that suggest an affiliation or association with the Winter Olympics. While it is generally acceptable to use generic seasonal images or sporting event images, the more these items are used together, the more of a risk of running afoul of the relevant laws and rules.
6. Avoid specific congratulatory messages - whether to individual teams or to individual athletes. Although commonly used by brands, congratulatory messages to participating athletes would not only be a potential right of publicity problem (if there was no agreement in place with the athlete) but could also harm their eligibility, as the use of a participating athlete's name, likeness, or performance for commercial purposes without approval of the USOC or other applicable governing body violates IOC Rule 40 - to which all participating athletes must adhere. IOC Rule 40 establishes a blackout period during which participating athletes' names, likenesses, and performances cannot be used without IOC or the applicable governing body's approval - and for these upcoming Games, the period is February 1 through February 28. (There is now a waiver for Rule 40, but if you are first reading about it here...you've already missed the deadline to apply for this waiver, which we discussed back in April 2017)
7. Importantly, all of the foregoing applies to both traditional and social media. Things like congratulatory Tweets, the use of Olympic terms as hashtags, and the use of imagery from the Olympic events in social posts could all pose problems for brands that do not have an affiliation with the USOC.
This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.
