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Special Feature -- #Olympics and #SuperBowl Are They Free for the Taking?

Monday, February 03, 2014

By Nicole M. Murray of Quarles & Brady LLP

The 2014 Winter Olympics and Super Bowl XLVIII are about to capture the attention of many advertisers as well as the consumers who purchase their products. Advertisers are poised to take advantage of this massive audience and the buzz surround the events. So what are the “rules” surrounding the use of the Olympic and Super Bowl trademarks by advertisers?

What Do the National Football League and United States Olympic Committee Own?

Under federal trademark law, the NFL (like other trademark/brand owners) retains the exclusive right to control marketing of its products. The NFL owns numerous trademarks, including SUPER BOWL™, the Super Bowl logo, NFL™, and NATIONAL FOOTBALL LEAGUE™. The individual professional football teams also own trademarks for their team names, nicknames, and logos.

The USOC has all of the same rights as other trademark owners but also has additional statutory protection for its trademarks. The Ted Stevens Olympic and Amateur Sports Act provides the USOC with the exclusive right to use (and prevent others from using) the following:

  • The name “United States Olympic Committee;”
  • The symbol of the International Olympic Committee, consisting of five interlocking rings, and other Olympic symbols;
  • Various emblems of the USOC ; and
  • The words “Olympic” and “Olympiad.”

What Does this Mean for My Business?

The NFL and USOC have used their exclusive rights in their trademarks to develop partnerships with their official sponsors. Understandably, the NFL and USOC are protective of these official sponsors and the money contributed by these sponsors. Thus, both the NFL and the USOC aggressively police unauthorized uses of their trademarks. Without permission from the NFL/USOC, a broadcaster or commercial advertiser cannot legally say any of these protected words or use their protected logos in their marketing or promotions.

What can you do if you are not an official sponsor? If your business is not an official sponsor, it can still use the NFL and USOC trademarks in news reporting. Under the nominative fair use doctrine, it is permissible to use a trademark to describe an event or product. For instance, you can report that the Seattle Seahawks and Denver Broncos are competing in Super Bowl XLVIII on February 2, 2014, and you can write articles summarizing the games and use the team names — you are not required to describe the game as “the football game held in New Jersey on February 2nd between the professional football teams in Denver and Seattle.” Similarly, you can report the competition schedule for the 2014 Sochi Winter Olympics and discuss the Olympic medal chances of the local hometown participant in a news context.

What if you are not simply reporting the news? What are your options? The safest option is to avoid the use of the NFL’s and USOC’s trademarks and instead use descriptive terms to describe the event. For instance, an advertiser could use “The Big Game” to advertise its electronics sale, or it could create a “Two Weeks in Sochi” campaign. If an advertiser is considering using promoted tweets, then #BigGame, #SochiGames, #WinterGames, or #SochiHockey are good options.

What About Athletes? Can I Use Their Names and Images?

Using individual athletes’ names and likenesses is another hot issue. Athletes, like celebrities, are paid to endorse products and have the right to prevent the unauthorized use of their names and images in advertising. If your brand does not have an established endorsement agreement with an athlete, you should avoid using that athlete’s name in postings, tweets, or other advertisements that include your brand. Similar to the use of trademarks, there is an exception for news reports. A tweet listing the Olympic bobsled medalists likely is not problematic, but if you tweet a picture of that same Olympic bobsled winner wearing your shirt or eating your products, then you may be risking a claim by the athlete.

Major sporting events represent excellent opportunities to promote your brand. But if you are not an official sponsor, take a second look before you launch a campaign or sale, and review your materials to ensure that you are not violating the rights of others.

About Nicole M. Murray

Nicole (Nikki) M. Murray is a partner in Quarles & Brady LLP, who practices in the firm’s Intellectual Property Practice Group. Ms. Murray focuses her practice on branding, advertising, and promotions issues. She counsels clients on a full range of intellectual property issues, including infringement, licensing, and branding as well as advising them on marketing and advertising issues arising both in traditional media and on social media platforms. Nikki represents companies around the world in a broad range of industries, including consumer products, advertising, and manufacturing.

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