How to get the medal for communication?

By Paul Turlais IP Attorney Distinctive | Ipsilon Group

With the start of the Paris 2024 Summer Olympics on Friday 26 July, and the Paralympic Games just around the corner, it’s very tempting for many businesses to introduce subtle references to these global events into their marketing campaigns, which will rule the sports pages of our summer. Let’s take a quick look at the rules to follow and the pitfalls to avoid if you want to secure a place on the podium and avoid a red card. 

Respecting the exclusivity of Olympic Properties

The organising body of the Olympic Games, hereinafter referred to as the “Olympic Body”, benefits first and foremost from a system of derogations from ordinary law for the protection of its symbols.

Namely,  article L141-5 of the French Sports Code legally defines that this Olympic body is “the owner of the national Olympic emblems […]” and punishes the act of registering such emblems as a trademark, but also of reproducing, imitating, affixing, …, or modifying the Olympic properties without its authorization.

These Olympic Properties include common terms as “Olympic“, “Olympiad” and “Paris 2024″, as well as representations of the famous Olympic rings, the flame and medals with the specific design of Paris 2024. All these elements are protected under the Olympic Charter, which prohibits their unauthorized use, these words and symbols appear to enjoy the status conferred on well-known trademarks.

It should be noted that an additional trademark or design registration sometimes duplicates the registration for some of the said properties. A fairly complete, but not exhaustive, list can be found in the various press releases issued by the IOC in preparation for the event.

The use of these Olympic properties in commercial communications is strictly and exclusively reserved for “official Olympic partners” who have been able to obtain this title “through their activities and support, contribute to the financing of the Olympic Games“. In the absence of an official partnership with the Olympic organization, it is strictly forbidden to include Olympic properties in commercial communications.

Besides the official Olympic partners, the non-Olympic personal partners, i.e. players who have signed a partnership contract with a participant/athlete but do not have an official license with the Olympic Organization, are also authorized to promote the image of their athlete for advertising purposes. For these promotional messages they are bound by the rules of the game, mainly the Olympic Charter.

Finally, regarding the use in advertising of expressions such as “take the lead in the race“, “top start” or “go for the medal“, it should be remembered that originality is mandatory for claiming the protection of copyright. Therefore, slogans and catchlines are, by their very nature, devoid of originality insofar as they simply consist of banal words from which the very personality of their author does not emerge.

Ambush marketing and authorised references

Ambush marketing has been defined by the Paris Court of Appeal as “the fact that a company makes itself visible to the public at a sporting or cultural event in order to associate its image with it, while avoiding paying the organizers and becoming an official supporter” (Paris Court of Appeal, 10/02/2012, 10/23711).

Although it is sometimes punished under the heading of economic parasitism as an act of unfair competition and therefore “contrary to honest market practices” (article 10bis of the Paris Convention), it should be remembered that in France, the host country of the competition in question, ambush marketing is not in itself expressly prohibited by law.

In this context, what rules should be respected?

First of all, as in any action based upon parasitism, the plaintiff must demonstrate the fault of the defendant, the damage he has suffered, and the causal link between these two events.

However, the courts now consider that the mere mention or reference to a sporting or cultural event in an advertising message, when it does not infringe a private right, is not sufficient to punish ambush marketing; it is also mandatory to demonstrate the abusive use of this reference or use.

For example, the complainant must show that the “ambusher” unjustifiably used the terms “sponsors”, “official partner” or the brands and symbols belonging to the organizer in its advertising.

However, if the accused simply uses terms that are  orbiting around the event; if the communication is skillfully done in an offbeat or humorous tone; or if simple subtle references are made without appropriating the symbols or logos of the federation organising the event, then the usurpation will not be sufficiently illustrated.

The decisive factor in determining the boundary between legal and illegal marketing is whether or not the reference is likely to create an illegitimate association in the mind of the public, leading them to believe that the ambusher and the organizer are in fact officially associated.

One example is the “vico” case, in which the organizers of the 2016 Olympic Games and the Euro football tournament taking place in the same year were unable to stop the Intersnack group’s campaign based on the slogan “Vico, partner of home fans“.

In the same way, Fiat was able to escape conviction in 2014 when it published an advertisement for its new Fiat 500 stating: “France 13-England 24, The Fiat 500 congratulates England on their victory and looks forward to seeing the French team on 9 March for France-Italy“. Although there was no doubt about the reference to the 2 national teams and the famous competition in question (2008 Six Nations tournament), the judges held that the use of the match score, the names of the nations concerned and the announcement of the next match were merely informative elements, which could not have misled the target audience about fiat’s status as an official partner, (Cass. com., 20 May 2014, n˚ 13-12.102, FS-P+B (N° Lexbase: A4978MMC).

The author’s opinion

While it is only natural, given the economic, political and cultural stakes involved in an event of the scale of the Paris 2024 Olympic Games, for the organizers to try to control the use of their image and preserve the exclusivity promised to their partners. But it is also important to reconcile this monopoly with the interests of all, including the “smaller” players, those who may not have had the opportunity to join the project, and above all to allow everyone, on the basis of freedom of expression, to support and take part in such a gathering. After all, that’s the spirit of sport!

In these circumstances, our teams are at your disposal to help you “stay in the game”; to ensure the legality of your advertising campaigns; and above all to enable everyone to support their favourite athletes so that they can take full advantage of the sporting promise of the summer of 2024.

Sources: 

Paris Court of Appeal, 10/02/2012, 10/23711

Cass. com., 20 May 2014, n˚ 13-12.102

The Olympic Charter (version en viguer au 23 juillet 2024)

France Paralympic – Application de la règle 40 pour la délégation française : https://france-paralympique.fr/regle-40/

AYNES, M. ALES, T. (12/2014) Ambush Marketing : Panorama jurisprudentiel et conseils pratiques, Lexisnexis Jurisclasseur – Contrat concurrence consommation : https://www.cliffordchance.com/content/dam/cliffordchance/PDFDocuments/Ambush-marketing.pdf

GELLES, V. (17/07/2023) Jeux Olympiques de Paris 2024 : quelles contraintes en metière de communication ?, Jurisexpert.net – Blogpost : https://www.jurisexpert.net/jeux-olympiques-paris-2024-quelles-contraintes-en-matiere-communication/

ROQUES, M. (08/02/2024) Le risque d’embuscade du marketing : L’ambush marketing – ARPP Blogpost : https://blog.arpp.org/2024/02/08/risque-embuscade-marketing-ambush-marketing/

Droit des marques et l’ambush marketing (fr) – Compte rendu de la conférence « Campus 2013 » réalisée par la rédaction de Lexbasre – La Grande Bibliothèque du Droit : https://www.lagbd.org/Droit_des_marques_et_l%E2%80%99ambush_marketing_(fr)

Hery, C. (03/2024) France : Ambush marketing et jeux olympiques Paris 2024, Legalmondo Blogpost : https://www.legalmondo.com/fr/2024/03/ambush-marketing-paris-2024-olympics 

Pierre, J. (31/04/2023) Ruugby Worldcup 2023, J.O. paris 2024 et Ambush Marketing – Village de la justice : https://www.village-justice.com/articles/rugby-worldcup-france-2023-paris-2024-une-occasion-surfer-sur-ces,45511.html

Téchené, V. Fajgenbaum F. (12 Juin 2014) Ambush marketing : Fiat : 1 / FFR 0 – Lexbase Hebdo éditions affaires n°385 (n° LEXBASE : N2593BYL) : https://www.nfalaw.com/wp-content/uploads/2020/01/12-06-2014-LEXBASE-AmbushMarketin-7.pdf