football and foam fingersThis may have been the first year we were more into the game than the ads as it was a well-matched nail biter right to the end, but this is advertising’s biggest night of the year as well as football’s and we were once again not disappointed. While views is likely the best measure of an ad’s success, here is the annual “All about Advertising Law Round Up”.

Our favorite campaign was the Australian Tourism ad featuring Chris Hemsworth and Danny McBride. The campaign encouraged tourism under the rubric of filming of a Crocodile Dundee sequel. The movie has its own IMDb page and related Twitter hype. But there is no movie. It is all part of the tourism ad campaign. This is fake news without the political baggage, creating buzz and interest for the product offering. Well played!


Continue Reading Big Game Fun Includes Viking Disclaimers and Fake News

Olympic Bobsled TeamSummer may just be heating up, but advertisers should already be thinking about and planning for the 2018 PyeongChang Winter Olympic Games because the “Rule 40” deadline is fast approaching. The opening ceremony of the PyeongChang Olympics isn’t until February 9th of next year, but advertisers that are not official Team USA sponsors but want to include Team USA members in campaigns that run during the PyeongChang Olympics must act by August 1, 2017.

As we discussed in our previous blog post titled Golden Rules: Diving Into Rule 40, Rule 40 restricts participants in the Olympic Games from allowing their “person, name, picture or sports performances to be used for advertising during the Olympic Games.” This restriction, which is contained in a bye-law to the International Olympic Committee (IOC) Charter, is administered by each country’s Olympic authority and was relaxed somewhat in 2015 to permit Olympic participants to be featured in so-called “generic” advertising during the Olympic Games.


Continue Reading Golden Rules: The Rule 40 Deadline is Nearing the (Slalom) Gate; Advertisers Cannot Just (Figure) Skate Over the Regulation

football refereeIt’s our favorite time of year, when we get to see the best, boldest, and bravest duke it out. Oh sure, there’s the football, but we’re talking about the ads! It’s one of the busiest nights of the year for ad lawyers, enjoying ads we worked on come to life (and seeing the disclaimers we lovingly and painstakingly crafted) and responding in real time to “can we tweet this?” We blog every year about our favorites (see here and here and here and here) and trends. We were happy with a game in overtime, as it meant – that’s right – MORE ADS! And we understand social media was up over last year but did not exceed 2015’s record numbers. But still, 27.6M tweets, 240M Facebook interactions, and 150M Instagram interactions is pretty big stuff.
Continue Reading Annual Big Game Ad Review

We’ve never reposted a blog, but in light of Ryan Lochte’s being robbed, then exaggerating being robbed and now maybe not exaggerating so much, and Colin Kaepernick’s decision to sit out the National Anthem, we thought this oldie but goodie on celebrity endorsers and morals clauses was worth dusting off.

One quick update on the post. The case we wrote about ultimately settled on undisclosed terms.


Continue Reading Court Refuses to Dismiss Celebrity Endorsement Breach Of Contract Case

Demand for Olympic merchandise in the United States is resurrected every 4 years by the fervor of the televised Games. Officially, authorized and licensed gear is readily available in stores and on the Internet; however, every iteration of the Games brings with it a flood of counterfeit Olympic goods as well. The broadcasting of this year’s Olympics in Rio de Janeiro has, as expected, beckoned all sorts of counterfeit Olympic items to the U.S. market. From t-shirts illegally emblazoned with “Team USA”, to phony gold medals inscribed with the Olympic Rings. This blog post explores the laws that protect consumers and Olympics rights-holders in the United States from counterfeit Olympic goods.

Under 15 U.S.C. § 1127, a counterfeit is an article that includes unauthorized use of a logo, name, or other trademark that is “identical with, or substantially indistinguishable from” a registered trademark. The widely recognizable signs, symbols, and words affiliated with the Olympics, Paralympics, and Pan-American games are all registered trademarks. This includes, but is not limited to, the torch, the five interlocking rings, and the words “Team USA.”


Continue Reading Golden Rules: Counterfeits and the Olympics

winner-1445797_640The next issue in our series of blog posts about the Olympics considers “Rule 40,” which can get both advertisers and athletes into trouble. We think Rule 40 deserves a gold medal for generating buzz in the advertising world, and a silver for generating confusion.

Rule 40 restricts participants in the Olympic Games (i.e., competitors, coaches, trainers, and officials) from allowing their “person, name, picture or sports performances to be used for advertising during the Olympic Games.” The advertising blackout period for the Rio 2016 Olympics is from July 27th through August 28th, which is from 9 days prior to the Opening Ceremony until  3 days after the Closing Ceremony. 
Continue Reading Golden Rules: Diving Into Rule 40

With the opening ceremony for the Rio 2016 Olympic Games less than 1 month away, Olympic sponsors and non-sponsors alike are thinking about how they may be able to capitalize on the event’s popularity. Brands must, however, beware of using Olympic trademarks (as discussed in our previous blog post, Golden Rules: Wrestling with the Use of Trademarks), in large part, because of the relative ease with which Olympic rights-holders, such as the United States Olympic Committee (USOC), can take legal action. In the United States, under the Ted Stevens Amateur Sports Act (Ted Stevens Act), the USOC has exclusive rights to use “Olympic,” “Olympiad,” the interlocking rings, event mottos and other Olympic trademarks. The Ted Stevens Act also prohibits use of any word, symbol, or combination thereof that “tends to cause confusion or mistake, to deceive, or to falsely suggest a connection with the user and the Olympics”. In practice, this is a very broad prohibition.

For example, the interlocking ring design is a trademark owned and controlled by the USOC. Unauthorized use of the image of the rings is not permitted on the basis of copyright defenses, such as the public domain or fair use, despite popular misconceptions to the contrary. The rings, and other Olympic trademarks, including the word “Olympics,” are also not generic. Use of the word “Olympics” can be protected by free speech in narrow circumstances, but if you are an advertiser reading this blog, it’s highly unlikely that you will be able to fit your uses into that “protected speech” category, even if you can credibly claim that your use is expressive.


Continue Reading Golden Rules: Lowering the Uneven Bars on Likelihood of Confusion

As excitement builds for the 2016 Olympics and Paralympics in Rio, companies and organizations, big and small, will be tempted to use the “Games” or the “Olympics” to promote their products, services and agendas. But, they must beware of getting too caught up in the Olympic spirit. Although Olympic and Paralympic trademarks such as the interlocking rings, “Rio 2016,” and “Faster Higher Stronger” may be ubiquitous, especially this summer, an unauthorized use of such trademarks could bring a lot of legal headaches to the user.

Some background: 
Continue Reading Golden Rules: Wrestling with the Use of Trademarks

We had several reactions to the game on Sunday.  What were yours?  As two people both of whom are looking at their thirties in the rear view mirror, it was hard not to root for the old guy, as much as we also love Cam Newton.  And as advertising lawyers it sometimes seems like we

Levi's Stadium image by Jim G
Photo by Jim G [CC BY 2.0] via Flickr

Will the Patriots’ dreams of heading to this year’s Super Bowl® get deflated? What, exactly, will Olympic® gold medalist Ryan Lochte do in Rio? How much madness will March cause? This year will be a big one for sports fans and advertisers alike, with Super Bowl 50 and March Madness® around the corner, followed this summer by the Olympic Games® in Rio de Janeiro, Brazil. With millions of viewers tuning in, these events are the top of the podium when it comes to advertising opportunities. The National Football League (NFL), National Collegiate Athletic Association (NCAA), and International Olympic Committee (IOC) all recognize this, and each organization actively enforces its trademark rights, policing infringing uses of its trademarks and any attempt by marketers to imply false affiliation with these events.  Marketers considering running an advertising campaign or promotion that uses any of the trademarks associated with these events without first obtaining the proper permissions should proceed with extreme caution.
Continue Reading When It Comes to the Year’s Biggest Sporting Events, Don’t Fumble Your Ad Campaign