Tuesday, July 31, 2012

IOC Takes (chemical element) Au Medal in Trademark Bullying

Its Olympics time again. That means another opportunity to bash the International Olympic Committee (IOC) and its National Olympic Committees (such as the United States Olympic Committee or USOC) for trademark bullying. Every two years we hear about the little shops and businesses, particularly those in the country of the scheduled games, that are advised, warned, or even threatened to take down signage that displays the 5-ring symbol, the words “Olympic” or “Olympiad,” or any other mark exclusively reserved for use only by the Olympics organization. That currently includes any reference to “London 2012” and “30th Olympiad” as well as various combinations of words associated with the Olympics, such as “games,” “gold,” “silver,” “bronze,” “London,” “2012,” etc. You get the picture.

No question, there are some choices made by the Olympics organizations that do appear a little harsh. The Minnesota band The Olympic Hopefuls, for example, became The Hopefuls, the Ferret Olympics, a fundraising event by a Eugene, Oregon ferret shelter, became the Ferret Agility Trials, and Nebraska Wesleyan University’s annual psychology department Rat Olympics became the Xtreme Rat Challenge.

Anyone familiar with trademark law would reasonably ask how these uses of “Olympics” could possibly create a likelihood of confusion—the standard for trademark infringement. While the such marks are subject to standard trademark protection by virtue of their use and registrations under applicable trademark laws, certain specified marks are subject to special statutory protection under the Amateur Sports Act of 1978 which is frequently cited as establishing an absolute bar to any use that does not meet certain very limited exceptions outlined in that Act.  Can you blame the USOC for taking advantage of its broad statutory rights?

Before answering, it should be noted that the Olympics were financially strapped throughout most of their history. It has only been in the last 25 – 30 years that Olympic marketing has generated significant revenues to support athletes, develop training facilities, and assist those hosting Olympic events. Much of that revenue comes from big companies paying big dollars for marketing rights. And those marketing rights hinge on brand exclusivity. Is there any doubt that the IOC and its National Olympic Committees feel pressured to protect such valuable assets for the benefit of (and perhaps even on demand of) sponsors? And, given the number and breadth of unauthorized uses, can you blame these Olympic organizations if their demands are a little brusque and their sweep a little impersonal?

Probably not…if you’re talking strictly about commercial infringers. But many are not, and maybe they deserve special handling, although not the kind used by the USOC in its cease and desist letter to Ravelry, a social network for knitters.

Ravelry was preparing to host its third “Ravelympics,” a knitting competition for persons watching the Olympic Games. Instead of sending a simple letter explaining the law and requesting a name change, the USOC sent a letter that, among other things, claimed that Ravelry’s use of “Ravelympics” in connection with events such as an afghan marathon and scarf hockey “tends to denigrate the true nature of the Olympic Games” and “is disrespectful to our country’s finest athletes.” Here is an organization with a solid legal basis for its position, and it chooses instead to be insulting. Not a smart move, particularly in today’s social media environment—especially when dealing with a social media based organization!

In the spirit of goodwill, couldn’t the USOC have said something less mean or insulting? How about:  “We have this law regarding use of these marks. We understand that it wasn’t your intention to violate the law, and that your infringement is most likely a desire to share in the excitement and goodwill symbolized by the Olympics. Unfortunately, we have a responsibility to the numerous Olympic organizations around the world, and to our sponsors, to control use of our marks, and cannot allow any use that is not expressly authorized and strictly used for the benefit of the Olympics. Please acknowledge that you will cease use of _________ within ___________ or we will be obligated to pursue legal redress. We appreciate your cooperation and apologize for any inconvenience.”

I realize this approach wouldn’t work in all cases, but it might make a few feel more like part of the team. Save the bullying until it’s needed.

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