The Protection of OLYMPIC and PARALYMPIC Properties Under French Law - International Trademark Association (2024)

Karina Dimidjian-Lecomte Casalonga Paris, France Leadership Development Committee

Klervi Henry Casalonga Paris, France

From the OLYMPIC flame to the interlaced rings, the symbols of the Olympic and Paralympic Games are of inestimable value, symbolizing spirit, unity, and athletic excellence on a global stage.

The OLYMPIC and PARALYMPIC trademarks, symbols, emblems, flags, hymns, mascots (the Olympic Properties) benefit from extensive legal protection as they are vital to securing the financial sustainability essential for hosting both events.

2024 OLYMPIC and PARALYMPIC symbols

Five-ringed symbol of the OLYMPIC GAMES	PARALYMPIC symbols

OLYMPIC and PARALYMPIC mottos

OLYMPIC and PARALYMPIC flags

OLYMPIC and PARALYMPIC mascots

Consequently, it is essential that companies intending to market, communicate, or otherwise refer to the upcoming PARIS 2024 OLYMPICS and PARALYMPICS understand the constraints imposed by French law and the corresponding legal risks associated with any unauthorized or illicit commercial practices and marketing communications.

Extensive Legal Protection of Olympic Properties

The provisions of the French Sports Code were modified in 2018 and 2022 in light of the 2024 OLYMPIC and PARALYMPIC GAMES. Pursuant to these provisions, the French National Olympic and Sports Committee (CNOSF) and the French Paralympic and Sports Committee (CPSF) own the national OLYMPIC and PARALYMPIC emblems, respectively. The International Olympic Committee (IOC) and the International Paralympic Committee (IPC) are the sole custodians of Olympic Properties.

Pursuant to Articles L. 141-5 and L. 141-7 of the French Sports Code, it is prohibited to register the Olympic Properties, or their translations, as trademarks or to imitate, affix, remove, or modify them without authorization. Further, unlike traditional trademark law, there are no other conditions imposed on the rights holder when asserting its rights, such as, for example, the requirement to demonstrate a likelihood of confusion.

Although there is an exception for the use of the terms OLYMPIC and OLYMPIAN in a descriptive sense for information purposes only, any use for promotional or commercial purposes, or that could in any way lead to confusion in the public mind with the Olympics, will not be considered to fall within such exception.

The CNOSF, CPSF, IOC, and IPC (the Committees) also own a wide array of registered trademarks and designs in France, the European Union, and internationally for the Olympic Properties. The Olympic Properties may also be protected by copyright. Hence, any unauthorized use of the Olympic Properties may also result in liability pursuant to the provisions of Books I, III, V, and VII of the French Intellectual Property Code (IP Code).

In addition, there is case law holding that the OLYMPIC-interlaced-rings design is a trademark with reputation, and that the terms OLYMPIQUE, JEUX OLYMPIQUES, and JO are unregistered famous trademarks within the meaning of Article 6 bis of the Paris Convention and Article 713-5 of the IP Code (CA Douai, Mar. 7, 1991, no. 4881/90; TGI Paris, Nov. 19, 2015, no. 14/06525; Cass. Com., Oct. 31, 2006, no. 04-18.043; TGI Paris, Oct. 25, 2019, no. 18/08940).

These trademarks therefore benefit from a broader protection, that is, including against the use of goods and services that are not similar to the goods or services for which they are protected, if such use, without due cause, takes unfair advantage of, or is detrimental to, the distinctive character, the repute, or notoriety of the prior trademarks.

Specific Measures Against Ambush Marketing

The Olympics and Paralympics have an immense worldwide audience. It is expected that one billion people around the world will watch the opening ceremonies of the PARIS 2024 OLYMPICS. Partnerships and sponsorship opportunities are therefore very attractive to companies around the world. The partnership policy the Committees have implemented is essential to their financing and is based on the exclusivity the Committees promise to official partners, in return for their financial support, to associate their image with the Olympics and Paralympics. The Committees are therefore particularly concerned about ambush marketing.

The French courts have defined ambush marketing as an “advertising strategy established by a company in order to associate its commercial image with an event and therefore to take advantage of the media impact of this event without paying the related rights and without having obtained prior authorisation from the event organizer.” (Paris Court of Appeal, No. 17/12912, June 18, 2018)The goal is of course to benefit from the media impact of the event without the costs of sponsorship.

Ambush marketing techniques have been used for many years in connection with sporting events, particularly the Olympic Games. For example, in connection with the 1994 WINTER OLYMPICS in Norway, Visa, an official sponsor, accused its rival, American Express, of an ambush marketing campaign in connection with a series of ads claiming that visitors do not need a “visa” to travel to Norway.

Further, the IOC has identified ambush marketing as a key risk to the Olympics and Paralympics and made it a requirement in the PARIS 2024 OLYMPICS Host City Contract for the French government to have in place sufficient protections against ambush marketing.

In addition to any claims brought on the basis of the French Sports Code or the French IP Code as discussed above, ambush marketing can also be sanctioned under French law on the grounds of parasitism (free-riding) pursuant to Article 1240 of the French Civil Code as well as unfair and misleading commercial practices provided for in the French Consumer Code.

In determining whether marketing campaigns constitute ambush marketing, the courts consider, in particular, the dates of the campaign relative to the Olympics and also whether there is a link between the elements of the campaign and the Olympics. For example, in a decision issued in connection with the 2012 LONDON OLYMPICS, it was held that the proximity of the dates of the defendant’s advertising campaign with the Olympic Games as well as direct references to the world of the Olympic Games in the advertising campaign, such as rings and sports included in the Olympics, created a direct link in the mind of the public thereby constituting ambush marketing (TGI Paris, 3e ch., 4e sect., Apr. 10, 2014, n°12/15470).

Likewise, promotional slogans implying an agreement with the CNOSF—even though they do not include the terms OLYMPIC GAMES or OLYMPICS—have also been considered to constitute illicit ambush marketing practices. For example, in a 2011 case against an online betting operator, the court hearing the case sanctioned the use, during the 2006 TURIN OLYMPICS and PARALYMPICS, of the slogan “Share the gold of your champions thanks to the bets on offer at this event” on the grounds of parasitism (free-riding). The court held that the slogan misleadingly suggested that bets offered were part of an agreement with the CNOSF and therefore that the defendant was free-riding on the reputation of the Olympics and investments (Paris Court of Appeal, ch. 2, Pôle 5, Jan. 21, 2011, no. 09/20261).

Likewise, the use, during the RIO 2016 OLYMPICS and PARALYMPICS, of promotional banners in the colors of the Olympics, including the representation of an OLYMPIC flame and a view of Christ the Redeemer symbolizing the city of Rio de Janeiro, associated with the expression “DES DEALS EN OR” (GOLDEN DEALS), as well as a newsletter relating to a marketing operation in which consumers could use promotional codes, one of which was the word GAMES, to obtain reductions, were also considered to constitute acts of ambush marketing. The court considered that these color choices could in no way be explained by the defendant’s graphic chart and usual communication codes. In addition, the vocabulary used was not limited to that of a classic promotional operation since it expressly referred to the OLYMPIC universe, both through the word GOLD and the accompanying representations, which clearly referred to the symbol of the OLYMPIC flame and the city of Rio de Janeiro (TGI Paris, Apr. 19, 2019, no. 18/00264).

Also, the offer of a product that is clearly inspired by the Olympics and Paralympics, such as a product bearing the OLYMPIC colors associated with certain symbols, has also been sanctioned on these grounds. In the case Comité National Olympique et Sportif Français v. Sowatches Trading Company Limited, the defendant’s sale, during the RIO 2016 OLYMPICS and PARALYMPICS, of watches with a burning flame spread on the dial from 1 to 12 o’clock, with the colors of black, green, yellow, blue, and red, which echo the colors of the iconic OLYMPIC rings, as well as various references to the OLYMPICS in the marketing communication, were considered to constitute acts of ambush marketing (TGI Paris, Jan. 19, 2019, no. 17/06376).

Sanctions

Any failure to comply with the provisions of the French Sports Code as well as any acts constituting trademark, design, or copyright infringement, or unfair competition and misleading commercial practices, could result in either civil or criminal sanctions.

In a civil action, the French courts may order prohibitive measures, including:

• The recall or destruction of infringing products as well as of the materials and instruments used in their creation or manufacture;
• The publication of the court’s decision;
• Economic and moral damages; and
• The reimbursem*nt of the winning party’s legal fees and expenses.

In a criminal action, the French courts may order prohibitive measures, including:

• The payment of a substantial fine;
• The dissolution of entities and closure of establishments used for the infringing products; and
• In the case of individuals, a three-year prison sentence.

For example, in the 2011 case cited above, in addition to the publication of the court decision in the press, the defendant was ordered to pay €65,000 in damages and €40,000 for the reimbursem*nt of the Committees’ legal fees and expenses (CA Paris, Pôle 5, 2e ch., Jan. 21, 2011, no. 09/20261).

Further, in a 2018 case, the CNOSF filed successful civil trademark infringement and parasitism (free-riding) claims against the use of a logo featuring the OLYMPIC rings (although heart-shaped) associated with the terms RIO and RIO 2016, in the marketing for a line of clothing named POLO RIO 2016 COLLECTOR.

In addition to the prohibitive measures against the infringing line of clothing, the defendant was ordered to pay €55,000 in damages and €10,000 for the reimbursem*nt of the CNOSF’s legal fees and expenses (TGI Paris, 3e ch., June 7, 2018, no. 16/10605).

The CNOSF was also successful in a criminal trademark infringement claim against the unauthorized use, during the LONDON 2012 OLYMPIC GAMES, of the OLYMPIC intertwined rings on 200,000 beer coasters as well as on its website to inform its customers about the on-screen broadcast of the OLYMPIC events (Cour Cass., Ch. Crim., Jan. 17, 2017, no. G 15-86.363 F-D).

Best Practices

Companies that are not part of the official OLYMPIC sponsorship programs should not use any of the Olympic Properties for commercial purposes without authorization from the relevant Committee.

They should also always thoroughly assess the risks of any planned promotional campaign(s) that could be considered to create a connection with the Olympics or their values in light of the potential sanctions pursuant to French unfair competition law. In particular, they should consider the timing of the campaign in relation to the Olympics, whether it evokes the universe of the Olympic Games and whether it could create a direct or indirect conflict with any of the official OLYMPIC sponsors.

Companies should also closely inspect social media practices, as use of event hashtags, emojis, or regular reposting of content related to PARIS 2024 could be considered to constitute trademark infringement or unfair competition.

The Committees enforce their rights to the Olympic Properties very actively and have a proven track record of successfully enforcing their IP rights as well as tackling ambush marketing in France.

Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.

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