Protecting trademarks during the Olympic Games : the major issues and challenges

Protection des marques lors des Jeux Olympiques : des enjeux de tailleThe 2024 Olympic and Paralympic Games represent an exceptionally important date for Paris. The city’s application was accepted by the International Olympic Committee (IOC) on 13 September 2017. This event is a major challenge for both the Olympic trademark  and the partner trademarks which will be protected by intellectual property rights and competition law.

Challenges for the protection of the Olympic trademark and  its notoriety

The Olympic Games are broadcast all over the world and have a global reputation, so the trademark must be protected against the high risks of parasitism and infringement.

This is when intellectual property rights have all their importance. Trademark law protects registered distinctive signs such as the official name of the event, logos, the hymn, etc. Similarly, article L141-5 of the French sports codes already stipulates that the French National Olympic and Sports Committee (CNOSF) is the owner of the national Olympic emblems, currency, hymn, the Olympic symbol and the terms “Olympic games” and “ Olympiad”. Any filing as a trademark, imitation, reproduction, apposition, suppression or modification of these signs constitutes an infringement and is punishable by the sanctions referred to in the French Intellectual Property Code.

Beyond these provisions, the host countries frequently implement ad hoc legislation that may be restrictive and sometimes exempt from common law, to be able to prepare the event in an optimum manner and honour the commitments made during the application phase. For France, this is the purpose of law no. 2018-202 promulgated on 26 March 2018 relative to the organisation of the 2024 Olympic and Paralympic games.

Article 3 of the law specifies and reasserts the rights of protected signs. In this respect, it amends the terms of the French Sports Code and adds certain signs to the protection. The CNOSF is, thereupon, owner of the national Olympic emblems and custodian of the Olympic games flag, currency, emblems, hymn, logo, slogan and posters and of the mascot, the terms “Olympiques”, “Jeux olympiques”, “Olympiade”, “Olympien/Olympienne” “JO” and of the vintage “city+year”. Any commercial or promotional use of these signs or that could lead to a risk of confusion in the minds of the public suggesting a link with the Olympic Games is punishable under the dispositions of the Intellectual Property Code, as constituting infringements. Only the use in normal speech is tolerated.

Lastly, article 6 b of the Paris Convention signed on 20 March 1883 “for the protection of industrial property” states that any person who harms the image of a well-known trademark  will be held liable. In this respect, it is incontrovertible that the Olympic trademark is entitled to this particular protection. In 2006, there was a case in which the CNOSF was up against the procurement group of Leclerc supermarkets which had called its promotional campaign “Olymprix” and filed this trademark for their products. The French courts highlighted the deterioration of the image of the “Olympique” and “Jeux Olympiques” trademark and the acts of parasitism, finding against Leclerc.

Challenges for sponsor trademarks

Behind the euphoria of the global event there are major financial interests at stake. One and a half billion Euros will be used to fund the event. Funding that is provided by the 15 major partner corporations, including LVMH, Suez, BNP Paribas, in consideration of which they will be promoted during the event and allowed to use the protected signs of the games. The increased protection afforded the Olympic emblems by the aforementioned legislation and the ad hoc legislation in particular is therefore at the heart of the smooth running of the games. Only partner undertakings can use the Olympic signs in their marketing strategies during the event, which constitutes major compensation for their funding. Without protection, no investment: without investment, no event. “The strongest guarantees must be given to the CNOSF to protect the terms of which they are the custodian. Their protection is in fact essential for the economic equilibrium of the Games. It is therefore imperative that the partners know their investment is guaranteed and their rights protected” explained Laura Flessel, French minister of sports, at the parliament sitting on 20 December 2017 at 15:00.

This represented a sizeable challenge for non-partner undertakings wishing to take advantage of a global, highly mediatised event in their marketing strategies. Some criticise the measures of the ad hoc law, as it undermines freedom of expression, or restricts the freedom of trade and industry. Severe provisions which, furthermore, go beyond the protection of trademark law by making it deviate from its core function of distinctiveness. While trademark law only protects distinctive signs, this ad hoc law protects terms that have no distinction, but with the aim of protecting the investments of the partner trademarks, in particular to stimulate sales.

Furthermore, the partner trademarks still have to face ambush-marketing. This practice consists in non-certified trademarks making themselves visible during the Olympic Games without having contributed investments in return. The Paris Tribunal de Grande Instance, on 30 May 2008, condemned this type of practice in respect of tortious liability and parasitism in a case opposing the French Tennis Federation and UNIBET. It stated that “UNIBET deliberately places itself in the wake of the Tournament to promote and develop its business inexpensively, which is the definition of parasitic behaviour entailing tortious liability”.

The unfolding of an event which has a global reach therefore poses challenges both for the well-known trademark which the Olympic trademark represents and for the partner trademarks for which protection is critical. France intends to provide effective protection for the Olympic trademark and its recognition, which represent valuable assets.