The U.S. Olympic Committee ("USOC") has a reputation for aggressively policing their exclusive rights to certain words, phrases, and symbols. And they have a special act of Congress to back them up.
The Ted Stevens Olympic & Amateur Sports Act (hereafter "the Act") grants the USOC the exclusive right to use the word "Olympic," and other Olympic related terms and symbols, and therefore the right to prohibit certain commercial or promotional uses by others. The Act allows the USOC to license use of the marks to contributors and suppliers of goods or services who wish to advertise that "the contributions, goods, or services were donated or supplied to, or approved, selected or used by [the USOC]."
(a) Exclusive Right of Corporation. ‒ Except as provided in subsection (d) of this section, the corporation has the exclusive right to use ‒
(1) the name "United States Olympic Committee";
(2) the symbol of the International Olympic Committee, consisting of 5 interlocking rings, the symbol of the International Paralympic Committee, consisting of 3 TaiGeuks, or the symbol of the Pan-American Sports Organization, consisting of a torch surrounded by concentric rings;
(3) the emblem of the corporation, consisting of an escutcheon having a blue chief and vertically extending red and white bars on the base with 5 interlocking rings displayed on the chief; and
(4) the words "Olympic", "Olympiad", "Citius Altius Fortius", "Paralympic", "Paralympiad", "Pan-American", "America Espirito Sport Fraternite", or any combination of those words.
36 U.S.C. § 220506(a).
The Act was passed in 1978 with the purpose of protecting the USOC's ability to generate the funds necessary to send American athletes to the Olympic Games. The USOC is a non-profit corporation chartered by Congress to coordinate, promote, and govern all international amateur athletic activities in the United States. The Act was amended in 1998, but other than some rearranging of wording, the only substantial difference to § 220506 is the addition of subsection (d) that excludes geographic reference rights (in the State of Washington west of the Cascade Mountain range, thus protecting the good people of Olympia) from the grasp of the USOC's exclusive use.
The Supreme Court analyzed the original version of the Act in San Francisco Arts & Athletics v. Olympic Committee, 483 U.S. 522 (1987). In that case, the USOC successfully obtained an injunction against the SFAA for their use of "Gay Olympic Games" to describe and to promote the athletic competition they sponsored. The Court's reasoning was murky, but ultimately held that the Act did not violate the First Amendment when granting exclusive use of the word "Olympic" without requiring the USOC to prove that an unauthorized use is likely to cause confusion. ("Congress reasonably could conclude that most commercial uses of the Olympic words and symbols are likely to be confusing.") The Court relied legislative history ‒ and the apparently meaningful lack of a comma in the statute (then appearing at 36 U.S.C. § 380):
(a) Unauthorized use; civil action; lawful use prior to September 21, 1950
Without the consent of the Corporation, any person who uses for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition--
(1) the symbol of the International Olympic Committee, consisting of 5 interlocking rings;
(2) the emblem of the Corporation, consisting of an escutcheon having a blue chief and vertically extending red and white bars on the base with 5 interlocking rings displayed on the chief;
(3) any trademark, trade name, sign, symbol, or insignia falsely representing association with, or authorization by, the International Olympic Committee or the Corporation; or
(4) the words "Olympic", "Olympiad", "Citius Altius Fortius", or any combination or simulation thereof tending to cause confusion, to cause mistake, to deceive, or to falsely suggest a connection with the Corporation or any Olympic activity;
shall be subject to suit in a civil action by the Corporation for the remedies provided in the Act or July 5, 1946 (60 Stat. 427; popularly known as the Trademark Act of 1946) [15 U.S.C.A. § 1051 et seq.]. ...
36 U.S.C. § 380(a) (emphasis added).
See, there's no comma between "any combination or simulation thereof" and "tending to cause confusion," which of course means that the likelihood of confusion requirement only applies to combinations or simulations of the words at issue, and not the words used by themselves. Obvious, right? So your local Olympic Pizza had better find some paint and turn that "c" into an "a," even though there's not even a remote chance that you'd think the USOC stood behind their pies and gyros ‒ but "Olympia" is all right because it's not one of the enumerated words and there's probably no likelihood of confusion. (The omission of the critical comma continues into the current version of the Act; see 36 U.S.C. § 220506(c)(3).)
Back in 1987, SFAA argued that its use of "Gay Olympics" was intended to convey a political statement, and that the Act would be unconstitutional if applied to suppress such speech. Invoking commercial speech principles under Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S. 557 (1980), the Court held that the restrictions on expressive speech were merely incidental in light of Congress' substantial interest in encouraging and rewarding the USOC's activities. "By prohibiting the use of one word for particular purpose, neither Congress nor the USOC has prohibited the SFAA from conveying its message," the Court said, and noted that the event was held under the names "Gay Games I" and Gay Games II" in 1982 and 1986.
Justice Brennan, dissenting, believed that the Act was too broad, and that it regulated "an extraorindary range of noncommercial speech." He argued that Congress granted the USOC an "unprecedented right of 'exclusive use'" of the word "Olympic," and that language properly belongs to the public.
What is clear from the Court's ruling is that the Act provides protection beyond normal trademark rights, because the USOC doesn't have to show likelihood of confusion with respect to certain words and phrases, and traditional trademark defenses are not available. But there are still very important limitations. The Act is limited to situations where these words or symbol are used: (1) for purposes of trade, (2) to offer goods or services for sale or (2) to promote a theatrical exhibition, athletic performance, or competition. 36 U.S.C. § 220506(c). Since the 1987 Supreme Court decision and the 1998 amendments, lower courts have upheld these as limiting the Act's reach to commercial speech.
In 2001, the District of Colorado in USOC v. American Media, Inc., held that OLYMPICS USA, a magazine promoting the Sydney 2000 Olympic games, was not "proposing a commercial transaction" according to the Supreme Court's commercial speech analaysis, and therefore did not violate USOC's exclusive rights:
More importantly, though, to apply the commercial speech doctrine in this context would unduly broaden the limited definition of commercial speech, and would raise serious concerns about the status of news media organizations' presumed First Amendment protection...To extend the Act to give the USOC authority over speech that clearly is not commercial under established First Amendment doctrine would violate this principle.
156 F.Supp.2d 1200, 1209 (D. Colo. 2001).
The court also found that the language of the Act banning use of the restricted terms "to promote any theatrical exhibition, athletic performance, or competition" might in some circumstances incidentially restrict non-commercial speech, but also that the USOC did not allege that the magazine used any of its marks in that way. Id. at 1206. The court also noted that the USOC could pursue a trademark claim under the Lanham Act for the magazine's "commercial use" of "Olympic" on its cover and throughout its publication, and granted leave to amend because the USOC did not cite the Lanham Act in its complaint. Id. at 1210.
And now we are in the wake of the 2012 London Olympic games, with recent reports of the U.S. Olympic Committee's cease and desist letters to the knitting competition "Ravelympics," an attempt to force the name change of Olympic Gyros in Philadelphia, threats to ICANN for not blocking Olympic-related top-level domains, and, even on the eve of the London Olympic Games, "banning" a pro-Obama Olympic-themed political ad. This all begs the question: can they really do that?
The short answer is, yes, they can, but of course with some caveats noted above. The USOC has acknowledged that it can sometimes be heavy-handed, as evidenced by their subsequent apology to Ravelympics: "While we stand by our obligation to protect the marks and terms associated with the Olympic[s] and Paralympic[s]... we sincerely regret the use of insensitive terms in relation to the actions of a group that was clearly not intending to denigrate or disrespect the Olympic Movement." (They also noted that they "would welcome any handmade items" to motivate Team USA at the 2012 Games.") But although the USOC does have considerable power for protecting and enforcing the use of their marks, it is not an "exclusive right to use" in every context, as the Supreme Court has held and as the statute makes clear.
Tabitha Messick is an intern at the Digital Media Law Project and a rising 3L at the University of North Carolina School of Law.
(Photo courtesy of Flickr user juggernautco pursuant to Creative Commons CC BY 2.0 license)
