In a 2014 blog written before we all virtually traveled to Sochi, Russia for the winter Olympics, we warned advertisers to pay attention when using trademarks related to these sporting events (although we failed to discuss ways to avoid contracting pink eye… sorry, Bob Costas). This year is no different, and advertisers must remain cautious when launching ad campaigns across all media platforms that might imply a connection or association with any of these events or use the names of the events for commercial purposes.
For instance, the NCAA’s Trademark Protection Program describes restrictions on the unauthorized use of its trademarks and logos, tickets, and references to its championships. Only NCAA’s corporate champions and partners may use NCAA marks, tickets, and references in advertising or promotional activities. Otherwise, the NCAA must provide approval prior to using any of its trademarks or logos, which include terms like “Final Four,” “Road to the Final Four,” and “Dribble.” Advertisers should refrain from using such terms or references to the championships in ad campaigns, or a cease and desist letter might arrive long before the Final Four is determined.
When it’s not handling the legal issues that are invariably triggered by its halftime show, the NFL takes infringing uses of its trademarks seriously. As with the NCAA, the NFL does not shy away from sending cease and desist letters to advertisers using the term “Super Bowl” without permission; indeed, as the owner of the Super Bowl trademark it has a duty to police its mark. That said, it polices its mark very aggressively—it is, after all, a very valuable mark. Every January and February, we get a flurry of calls from clients that received cease and desist letters because they used the term “Super Bowl” or offered to give away tickets to the game as the prize in a sweepstakes without paying attention to the term in the “license” on the back of the ticket that prohibits the use of such tickets in advertising and promotions.
The Olympic trademarks are even more strongly protected than the NFL Super Bowl and NCAA marks because they are protected by statute; in the United States, Section 220506(c) of Title 36 of the United States Code includes the name “UNITED STATES OLYMPIC COMMITTEE”; the five interlocking rings; the words “Olympic,” “Olympiad” and “Citius Altius Fortius,” and a variety of other related words and symbols within its protection; and of course the United States Olympic Committee (USOC) is part of the larger (very active) International Olympic Committee, both of which actively pursue intellectual property infringement. IOC’s Rule 40 prohibits non-official Olympic sponsors from using Olympic participant names, pictures, or event performances in ad campaigns during the Olympic Games blackout period (July 27, 2016 through August 24, 2016). Prior to updating Rule 40 in October 2015, there were no exceptions and the IOC and its committees, including the USOC, prohibited the unauthorized use of terms like “Olympics” and images of the Olympic rings; a new update permits non-sponsors to apply for a waiver allowing some “in-market generic advertising” but the deadline to apply for the waiver has passed. The USOC has made it clear that no use is too small to bring action—for example, a school district in the Poconos, Pennsylvania received a call from the USOC asking the district to stop using the Olympic rings on its crest. The IOC has also issued “Social and Digital Media Guidelines,” which provides guidelines for the use of the word “Olympic” or Olympic-related terms by “accredited persons” (e.g., athletes, coaches, and officials) on social media or internet posts; these guidelines limit the use of such terms to editorial or factual purposes and prohibit their use for commercial purposes.
How can other advertisers take advantage of these advertising opportunities, then, without running afoul of the organizations’ enforcement policies? After all, most advertisers will not find Stephen Colbert’s approach—covering the “Superb Owl”—particularly desirable. Some advertisers use generic references to these events without using the term, such as saying “Championship Sunday” and “pro football championship” instead of “Super Bowl.” Another generally safe way to mention the Super Bowl or NCAA championships is to refer to “the Big Game” and include a football or basketball image in the ad; while the NFL sought to trademark the term in 2006, they were unsuccessful when it turned out that there was another “Big Game,” the one between Stanford and the University of California, that dated back to 1892. And there are non-advertising uses of the trademarked terms that may be “nominative fair use,” such as talking about the games in an editorial context, or having a party in your home—though if you are charging your friends to come watch the game on your new big screen TV, you may want to think twice about that for any number of reasons.
As the Super Bowl, March Madness, and Olympic Games approach, advertisers must carefully review event-related ads or risk fumbling the whole campaign. It is better to consider the guidelines set by the NFL, NCAA, and IOC/USOC and keep ads generic than play defense to a cease and desist letter.