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Protecting your trademarks is an Olympic feat

Posted by Chad O'Connor  August 6, 2012 11:00 AM

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While there are roughly twenty-five athletes with ties to Boston competing in the Olympics this year, business owners should take notice of the 2012 Games for another reason—the term Olympics is one of the most zealously protected trademarks in the world. Looking at how the term is protected provides valuable lessons to any business.

Aside from general trademark protection, the term “Olympic” and other marks associated with the Olympics are protected by special legislation in several countries. In the United States, the Olympic and Amateur Sports Act provides strong protections to the mark, and in Britain, Parliament recently enacted legislation that criminalizes certain types of ambush marketing that creates associations between brands and the Olympics. In London, the Olympic Delivery Authority has deployed 250 specialist enforcement officers to 28 locations to police counterfeit goods and unofficial uses of the Olympic trademarks, including the five rings logo.

Such vigilant enforcement has led some to cry foul, especially after two highly publicized incidents. The first involved a butcher in Britain who was asked to take down a sign incorporating sausages in the shape of the Olympic rings. The second recent incident inspired the wrath of thousands of knitting aficionados when the U.S. Olympic Committee (USOC) demanded that the website rename its Ravelympics.

While it may seem trivial at first blush, the parties policing the Olympic marks recognize that maintaining the integrity of a global trademark is a long term commitment and any erosion of that integrity counts. The following five lessons should be taken to heart by anyone operating a business.

1. Protect Your Mark Zealously But Politely

While you may be sympathetic with an online knitting community or a small town butcher, trademark law demands that mark owners police their marks. Failing to do so can have real consequences, including the loss of your rights entirely. That is not to say that you have to be too stern. The USOC caused such a stir with knitting enthusiasts largely because the letter it sent included standard language that referred to the use of the mark for a knitting competition as “denigrat[ing] the true nature of the Olympic Games.” The USOC later released an apology on its website but remained firm in its demand that the Ravelympics be renamed.

Much of the negative publicity surrounding the incident might have been avoided had the tone of the initial correspondence been less pointed. Of course, there are situations where it is important to be aggressive. Hiring an attorney who recognizes the difference is important.

2. Treat Your Trademark Like the Investment that It Is

Your trademark might not enjoy immediate recognition throughout the world or have a history that stretches to ancient Greece, but if you do not act like it does, it never will. All trademarks have the battling desires of becoming so ubiquitous that they are used generically for the goods or services they are used for, while also wanting to avoid being viewed as generic. When people use the term “Xerox” as a synonym for “photocopy,” it shows that the brand is the first thing that people think of when they think of a photocopy. At the same time, allowing a trademark to be used generically can quickly lead to the loss of trademark rights because generic terms cannot function as trademarks, which must inherently identify the source of a particular good or service and not that good or service generally.

This is one of the myriad reasons that zealous protection is so important, and it is why a mark as well-known and frequently used as the Olympic marks must be vigorously protected. Most business owners do not have 250 special officers deployed to police their marks, but that is the attitude that brand owners should have.

3. Choose Your Mark Wisely

As in medicine, a little bit of preventative care goes a long way. It is much worse for everyone involved when a business receives a cease and desist letter after promoting a particular brand for several months or years. Even if you have not done any advertising or promotional activity, changing your brand is almost never as simple as replacing the sign. While it may seem like a large investment to have an attorney run a search of existing trademarks and give you an opinion about whether your proposed trademark is acceptable, it is almost always much less costly than rebranding a year or two down the line.

Aside from the monetary cost of doing so, a business that rebrands loses much of the reputation it built around the previous name and has to expend a great deal of time and energy to educate its customers. Almost everyone knows about the term Olympics and knows to avoid it, but not many people know that the phrase “Citius Altius Fortius” is also a protected Olympic trademark. There are thousands of trademarks in use across the country that could impact your right to operate under a certain name, and calculating the risk of infringement is an art. Get an opinion from someone who does it regularly.

4. Be Forward Looking

If properly protected and used, trademark rights may last indefinitely. This concept is important to grasp as global brands increasingly become a shared vocabulary throughout the world. Almost nowhere is this seen as plainly as the Olympics, which draws the athletes and attention of more than 200 countries. The event is an international showcase for companies like Sosolimited of Boston, which designed a system that analyzes Olympic-related social media posts to calculate the collective mood of Britain before translating that mood into a light show on the London Eye, the well-known Ferris wheel on the Thames. If you are performing on a global stage, you should know what countries you plan to operate in and get protection in those countries now. If you secure those rights, they can be yours forever, but if you fail to, someone else can register your mark in other countries and force you to buy it from them later or worse, force you to rebrand to enter that market.

5. Do Not Take It Personally

If you are on the sending or receiving end of a cease and desist letter, do not take it personally. While there are certainly bad actors out there, many situations are created by accident. Whether it be because a business owner did not have a search done to determine whether a mark could be used without impinging on the rights of others, or because an organization like Ravelympics did not realize that almost anything ending in “lympics” would inherently make the Olympic marks less distinctive, it is important to start a dialogue with the other party. Doing so is the first step toward educating an infringing party or reaching an equitable solution. It is easy for a small town butcher to feel oppressed when the Olympics Committee demands that he take down his five ring sausages, but if thousands of companies throughout the world were attempting to make use of a logo that he developed, he should rightfully want to stop them. If the issue is explained correctly, reasonable parties should recognize their transgressions and seek to remedy them.

Anderson Duff is an attorney at Wolf Greenfield in Boston and a BWP Connector.

This blog is not written or edited by or the Boston Globe.
The author is solely responsible for the content.

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