Gannett’s Corporate Legal Department has compiled the following memo about the use of Olympics tradesmarks and symbols. Please read and heed:
During each Olympic season, a number of questions come up regarding proper use of the Olympic symbols and trademarks. As you know, the 2010 Olympic Winter Games will be held in Vancouver, British Columbia, Canada from February 12 until February 28, 2010 and the 2010 Paralympic Winter Games will be held in Vancouver, British Columbia, Canada from March 12 until March 21, 2010. As you develop plans for covering the games, we wanted to provide you with some background and guidelines for using the Olympic symbols.
The Ted Stevens Olympic and Amateur Sports Act. Briefly, the Amateur Sports Act prohibits use for commercial purposes of any symbol falsely representing any association with, or any authorization by, the United States Olympic Committee (USOC), the U.S. Olympic Team, the International Olympic Committee (IOC), the Organizing Committee for an Olympic Games (in this situation, the Vancouver Organizing Committee for the 2010 Olympic Winter Games and Paralympic Winter Games (VANOC)), the International Paralympic Committee (IPC) or any Olympic events, programs, or facilities of any Olympic Committee. The trademarks, symbols and designators (referred to as a group as “Olympic designators” hereafter) for which use is restricted include the five interlocking rings, the emblem of the USOC, the symbol of the IPC, and words “Olympic,” “Olympiad,” “Citius Altius Fortius,” “Paralympic,” “Paralympiad,” or any combination of those words. Use for commercial purposes of the terms “Winter Games,” and “Olympians,” or the Olympic Torch and other Olympic designators may also violate the Act if used in a manner that implies an association with, or an authorization by, any of the Olympic Committees.
Editorial Uses. Use of the Olympic designators for purely editorial purposes is permissible. In other words, a publication may use Olympic designators within stories about the Olympics to accurately describe the games, events and/or Olympic athletes. In addition, it is probably permissible to use Olympic designators, such as the five interlocking rings or the mascots for the 2010 Winter Games, in close conjunction with a story about the Olympics, e.g., below the headline or in the break between paragraphs. A newspaper may publish photographs of Olympic events and athletes, which may also contain Olympic designators (e.g., the Olympic torch). Such photographs should be run, however, in close proximity to editorial copy relating to the Olympic Games.
Use in Advertising for the Newspaper. Generally, Olympic designators may not be used in advertising without permission from an Olympic Committee. A newspaper may, however, use Olympic designators in a purely descriptive manner in advertising the newspaper itself. For example, a newspaper may run an advertisement that says, “Catch Our Day‑to‑Day Coverage of the Olympics” or “We Have the Best Olympic Coverage.” The rationale behind this exception is that a newspaper has a right to advertise its “wares,” here its coverage of the Olympic Games, and a newspaper would not be able to describe its Olympic Games coverage without using terms such as “Olympic” or “Olympics.” A newspaper may not, however, run advertisements stating “The Official Newspaper of the 2010 Winter Olympics,” “Your Olympic Gold Medal Newspaper,” or any other phrase that might imply any type of association with, or authorization by, the IOC, IPC, USOC or VANOC.
A newspaper should also be able to use photographs of Olympic events and athletes that have previously run in the paper in an editorial context in advertisements for the newspaper. There is some risk, however, if the photograph contains Olympic designators. Particularly of concern here is use of the mascots for the 2010 Winter Games ‑ they should not be used in connection with advertisements, even advertisements of the paper, without permission from the IOC, IPC, USOC or VANOC. Although a fairly strong argument could be made that use of the photos containing the Olympic designators qualify under the exception that a newspaper has a constitutionally protected right to advertise its wares, this issue has not been judicially determined. Because it could be expensive and time consuming to litigate this issue, the safest approach when advertising the newspaper is to use only photographs of Olympic events and athletes that do not contain Olympic designators unless, of course, such use is with the permission of the IOC, IPC, USOC or VANOC.
Special Sections on the Olympics. A special section that uses Olympic designators and looks more like a special advertising section, as opposed to a special editorial section, runs afoul of the statute. For example, if the section is called a “special advertising section,” focusing on the 2010 Winter Games, or if it is pitched to advertisers as such, or if the section is heavy on advertising and very light on editorial content, this may be viewed as an unlawful commercial use of the Olympic designators.
Special Advertising Sections Devoted to Olympic Games in Other Publications. An advertiser which has become an official sponsor to the Olympics, as authorized by the VANOC may produce and distribute its own special ad section to be incorporated into other publications, as long as only its own advertising appears within the special section, and not the advertising of others. Such a special section may not identify, or present, the publication in which it appears as an “official sponsor,” and it must clearly be the product of the advertiser ‑ the official sponsor ‑ and not a product of the publication. Here, the would‑be official sponsor is required to submit the special section to the Olympic Committee for approval prior to publication. That said, newspapers can create special editorial sections to cover the Olympic Games, and those sections may include advertisements so long as the guidelines set forth herein are followed.
Use in Sales Literature to Advertisers. Although a newspaper may inform advertisers that their ads will appear in a special editorial section containing Olympic Game coverage, the newspaper should avoid “Olympicizing” the sales pitch. For example, a newspaper should not send promotional materials littered with Olympic designators clearly attempting to induce the purchase of advertising space based on the newspaper’s coverage of the 2010 Olympic Winter Games. Descriptive uses of the Olympic designators, however, would most likely be permissible in this context. For example, an ad slick or promotional piece could indicate to advertisers that their ads will appear in a “special editorial section on the 2010 Olympic Winter Games.” The newspaper should in no event tell, or, in any manner indicate to, advertisers that they are, or will be, considered to be “sponsors” of the newspaper’s Olympic Game coverage, or characterize them as such in the newspaper.
Use in Ads Placed by Advertisers. Use of the Olympic designators in advertisements placed by advertisers without the permission of one of the Olympic Committees clearly violates the statute. Of course, official 2010 Olympic Winter Games sponsors who are authorized by the IOC, IPC, USOC or VANOC may run advertisements, contests and promotions using Olympic designators, indicating their sponsorship of the Olympic Games based upon their agreement to do so with one of the Olympic Committees. Authorized sponsors are required by an Olympic Committee, however, to submit all ads for pre‑approval by the Committee. Sponsors may prepare a manual of standard advertisements to which they will adhere throughout the duration of their sponsorship and, after they get the Olympic Committee’s approval of the manual, they do not have to submit newly created sponsorship ads for review, as long as the ads adhere to the standards in the manual.
It may be permissible for advertisers who are not official Olympic sponsors to use in advertising such terms as “Winter Games” or “Vancouver, British Columbia, Canada” as long as such terms are used in a purely descriptive manner and do not imply any association with, or authorization, by the Olympic Committees. There is some risk involved in use of these terms in advertisements, however, because the Olympic Committees take the position that such uses are not permissible under the statute. According to the Olympic Committees, they scrutinize advertisements using these kinds of terms, and will take legal action in situations where there is the slightest implication of sponsorship by, or association with, the Olympic Committees.
Although the federal Trademark Statute protects a newspaper that innocently publishes an infringing ad, the Olympic designators are protected under a separate statute and thus this federal protection may not be as readily available to publishers. Therefore, you should scrutinize with extra care ads that use the Olympic designators. If an ad uses such a designator, you should ask the advertiser if it is aware of the issue, if it has permission to use the designator and request either proof of the permission or an indemnification for the newspaper should a problem arise. The general indemnification the newspaper uses for advertisers is sufficient.
Contests. At least one court has indicated that official sponsors of the Olympics, in addition to purchasing the right to advertise their association with the U.S. Olympic Team, also purchase the right to conduct promotional contests based on an Olympic theme. This indicates that the right to conduct a contest related to the Olympic Games is within the exclusive rights of the Olympic Committees and their authorized licenses. Therefore, conducting a contest with an Olympics theme is risky. If the newspaper does run a contest with an Olympics theme, it should make the contest as editorial as possible. In other words, the contest should not be tied to, or sponsored by, its advertisers, and the newspaper should report on the results of the contest as well as avoid awarding valuable prizes to contest winners. However, awarding a nominal “prize,” such as printing the winner’s name in the newspaper, is most likely permissible. Also, any use of the Olympic designators by the newspaper in connection with the contest should only be in a purely descriptive manner, ensuring that use of the Olympic Games designators in no way implies any association with, or authorization by, the Olympic Committees.
Domain Names. In 1999, Congress passed the Anticybersquatting Consumer Protection Act (“ACPA”), providing trademark owners with an additional weapon against those who register and use domain names that contain their marks or trade off the goodwill associated with their marks. In light of this law, a newspaper that registers a domain name such as “newspapernameolympics.com” or “newspapername2010olympics.com” runs the risk of being sued by the Olympic Committee under the ACPA. In 2000, for example, the IOC, USOC and the Salt Lake Organizing Committee for the 2002 Olympic Winter Games (SLOC) filed a joint lawsuit in U.S. federal court against more than 1,800 registered domain names using the words “Olympic” or “Olympiad” and foreign equivalents of these words, and similar suits were filed against the owners of “2002Lodging.org,” “usolympicstore.com” and “slc2002.com.” Therefore, in order to avoid any potential liability, a newspaper should not register any top level domain names that contain any of the Olympic designators without permission from the IOC, IPC, USOC or VANOC. It is probably permissible, however, for a newspaper to use the Olympic designators in URL paths that lead to stories and editorial content about the Olympic Games (i.e., http://www.courier-journal.com/news/olympics). The reason for this distinction is that Olympic designators that appear in URL paths likely will be understood by most Internet users to be references to the topics or content of the linked pages and not an implied association or endorsement. In addition, the ACPA does not clearly apply to URL paths so the risk of liability is much less.
The IOC, IPC, USOC and VANOC receive substantial fees for licensing the use of the various Olympic designators to official sponsors for commercial purposes. Therefore, in order to maintain the economic value that the sponsors garner from their use of the marks, the Olympic Committees aggressively guard against any unauthorized uses. As the 2010 Winter Games in Vancouver, British Columbia, Canada are imminent, the VANOC is scouting heavily for unauthorized uses and, although they are likely to focus on the prominent media outlets, smaller entities have received cease and desist letters.
Please use the guidelines listed above for any decisions regarding the use of any Olympic designators. If you are not sure whether a particular use is permissible, please don’t hesitate to contact me, or Kim Jaske in the Law Department at (703) 854-6933, for further clarification.