Lewis Hamilton fails to push watch maker off the podium in trade mark action
Cancellation of ‘Hamilton’ trade mark is refused by the EUIPO.
The Olympic Games are in full swing as athletes from around the world compete to become an Olympic champion. For many of those taking part, getting to the Games has only been possible with the support of lucrative sponsorship deals. However, those athletes and companies have to take care to avoid falling foul of the Olympics strict rules surrounding sponsorship.
Rule 40 of the Olympic Charter states that “Except as permitted by the IOC Executive Board, no competitor, team official or other team personnel who participates in the Olympic Games may allow his person, name, picture or sports performances to be used for advertising purposes during the Olympic Games”.
The rule protects the vital revenue required to stage the Olympics by guaranteeing exclusivity for official Olympic sponsors, such as Coca-Cola, McDonald’s and Samsung, who have paid millions for the rights to advertise during the “Games Period” (27th July to 28th August; 9 days before the Opening Ceremony to 3 days after the Closing Ceremony).
In July 2015 however, the IOC approved a relaxation of the approach to Rule 40 to allow certain generic non-Olympic advertising during the period of the Games. This allows non-official sponsors to use images of athletes during the Olympic period provided such advertisement does not create any impression of commercial connection with the Olympic property or, in particular, the Olympic Games.
For example, in America, the sports retailer Under Armour has capitalised on this relaxation with their advert featuring the swimmer Michael Phelps. The advert had to be submitted for approval by 27th January 2016 (6 months ahead of the start of the Games Period), make no reference to the Olympic Games or use any Olympic words or marks, and had to run continuously prior to 27th March 2016 (over 4 months before the start of the Games Period).
As such, this relaxation of Rule 40 realistically only benefits those athletes who have established sponsors and are already household names.
The rule still prevents non-official sponsors from creating an association with the Olympics in any marketing activity. Organisations cannot use any Olympic or Games trade marks, Olympic-related terms, including words such as ‘Medal’, ‘Performance’ and ‘Victory’, images from the Olympics or other intellectual property, such as medals or team kit. The rules extend to social media. Brands should not use hashtags such as #Rio2016 or #RoadtoRio, re-tweet athletes’ posts or reference athletes participating in the Olympics, including by way of a congratulatory message. Similarly, athletes cannot create any association with their own sponsors.
So what might happen to sponsors, athletes and coaches who fall foul of Rule 40?
The sanctions provisions under Rule 40 are flexible but can include fines, removal of accreditation and disqualification.
We are not aware of reports of anyone in serious breach of Rule 40 this year, however any companies who sponsor an athlete or are considering creating an association with a sports star need to be aware of the trade mark and intellectual property rules surrounding major sporting events. With the Paralympic Games taking place next month, the World Games in 2017 and FIFA World Cup and Commonwealth Games in 2018, companies need to ensure they are not putting their brand, and the athletes they sponsor, at risk through their marketing.
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