Olympic marketing: Dealers have to consider volume

After Italy left the pitch as this year's European Championship winners, it doesn't get any less boring for sports fans. Although a year late, the Olympic Games will finally start in Tokyo at the end of July. The Olympic motto "citius, altius, fortius" ("faster, higher, further") is not only the mantra for high-performance athletes, but also for the economy, which wants and will capitalize on the sporting event. Be it the supermarket brochures that are now advertising snacks and fan articles, the sports studios that want to talk even the last sports muffle into a subscription in the euphoria, or the online retailer that finally wants to try out a few Olympic discounts.

The sporting excellence of a country is therefore just one of the goals of the major event. Sporting record wins are just as important. Logically, everyone wants a piece of the cake. In contrast to the European Football Championship or other sporting events, where the logos and terms are usually associated with FIFA, UEFA or other rights holders such as sports clubs or football clubs, the Olympic Games are based on a completely different construct.

Olympics: The fight for the highest profits

As with all sporting events, it is no longer so much about the athletes and their performance. Sponsoring, advertising contracts and the like are suspected to be the to influence competitions unfavorably (and meanwhile only annoy many viewers). It's the same with Formula 1 and it's no different with major football events and the Olympic Games. Therefore, behind the latter is also a large-scale marketing concept with exclusive rights.

The International Olympic Committee, as the rights holder of the Games, allows the organizers to use the "Olympic Games" trademark every two years. The International Olympic Committee (IOC) holds the patronage of the Olympic movement and all rights to the Olympic symbols such as the flag, motto and anthem. This even goes so far that the IOC requires states with applicant locations to issue a regulation before applying, which is intended to protect the owners of the rights to the Olympic symbols and designations. All with the focus on appreciating the Olympic Games and ensuring that everything runs smoothly. "What is generated benefits sport, makes the success of Olympic and Paralympic athletes possible and strengthens mass sport," says the DOSB website.

In order to ensure the chances of success for Leipzig's application for the 2012 Olympic Games, the federal legislature complied with the IOC's request and passed a law in spring 2004 to protect the Olympic emblem and the Olympic designations.

The Olympic Protection Act

So the terms Olympiad, Olympia and Olympic can claim their own law: the Act for the Protection of the Olympic Emblem and Olympic Designations. The law (abbreviated to the Olympic Protection Act, OlympSchG) was passed by the German Bundestag in 2004 and came into force on July 1, 2004. Actually, the regulation belongs in the category "It doesn't even exist!". In fact, the terms relating to the Olympics do not have to be registered as trademarks, as is otherwise known and expected from well-known words, in order to claim legal protection for oneself.

Are protected under the Olympic Protection Act

as well as the words

Companies are prohibited from using the Olympic emblem or titles in their goods or services in the course of commercial transactions without the permission of the rights holders. In addition, there must be no risk of confusion by changing the rings or terms. In addition, the permissible Olympic designations (more on this later) must not give the impression that the company is an official sponsor.

These terms or the emblem belong to the National Olympic Committee for Germany and the International Olympic Committee and may only be used by the German Olympic Sports Confederation (DOSB) or the International Olympic Committee (IOC) in commercial transactions. In the event of infringements, the rights holders can issue warnings and claims for damages, as is the case with a regular trademark. In the case of unlawful use on/for goods, there is even a right to destruction.

However, the law does not interfere with previously existing rights to use the protected signs. For this reason, you will already find trademarks registered before 2014 with the components Olympia or similar. The special protection established by the Olympic Protection Act does not rule out additional protection for Olympic designations, which in themselves enjoy trademark protection (Federal Court of Justice, decision of November 26, 2020, file number: I ZB 6/20). The Retrolympics brand has therefore initially made it into the trademark register.

Entrepreneurs could also refer to the exception or permission provided for in the Olympic Protection Act: Third parties may use the Olympic designations or similar designations for commercial purposes as an indication of the characteristics or properties of goods, services or people, provided that the use is not unfair. A regulation that says everything and nothing, but has caused many judgments in favor of the economy and at the expense of the Olympic rights holders. Here is a look at the case law.

"Olympic discount": The Olympic Games in marketing

As you can see from what has been said above, the greatest caution is required in marketing. And in fact, the IOC or the DOSB does not hesitate and does not follow -licensed advertising. "We know how to protect our rights and those of our partners and we take action against free riding. The type of action depends on the relevant violation," comments Florian Frank, Head of Marketing at the DOSB.

Nevertheless, there are ways and means to use the Tokyo Olympic Games in advertising this summer as well. The mother of all judgments is the Olympic discount decision of the Federal Court of Justice.

Examples of acceptable advertising:

Whether the Olympic signs and terms are open to use by any company or not due to previous case law - money can buy almost anything, as is well known. It is therefore not surprising that exclusive licenses and ratings for selected "brands" of the DOSB can be acquired through Deutsche Sport Marketing (DSM) as the official marketing agency. “There is a licensing system offered by our Deutsche Sport Marketing. However, this is not about advertising measures, but about products. In principle, however, you can talk about it within the scope of the possibilities," said Florian Frank when we asked him.

Use of flags

Like the European Football Championship or the World Cup, the Olympic Games also have an international focus. Athletes from all over the world compete with each other. Now one or the other retailer comes up with something and wants to bring more color into the game, uh, the shop. Depending on the nation, the current status of medals could then be used for marketing purposes or the local patriotism could be found in the colors black, red and gold in your own advertising or elsewhere in the shop. Is the?

First, as is so often the case, a look at the law helps, because it constitutes an administrative offense if a company uses the federal or state coat of arms without authorization. This is intended to counteract the unjustified exploitation of national emblems for commercial purposes. The requirement for "use" itself should be met quite quickly, because whether it's the pennant chain in the shop window or the stock photos in the shop, every display to the outside equates to use.

However, the question is whether this is already unauthorized. However, as expected, this is only the case if the appearance of official use arises. If a flag is only used in the sense of "we are rooting for you", this is not unauthorized use because it has no connection to an official activity. According to the Federal Patent Court, the federal colors black, red and gold are not a national symbol as such if they are not designed as a flag.

There is also a sister rule on the use of flags in trademark law. There, too, there is an administrative offense provision according to which anyone who illegally uses an identical or imitated form of a coat of arms, a flag or another national symbol to identify goods or services in commercial transactions is illegal. Here, too, one can breathe a sigh of relief if the flag does not give the impression of official use.

The best wins! Olympic sweepstakes and tip games

A sweepstakes should promote sales, increase awareness and generate new customer data. What could be better than a lottery in the guise of the Olympics, where the prize money might even be increased by every gold medal won by Germany. Maybe an extra little betting game? This is to be noted...

A lottery is not always the same as lottery, because there must always be a distinction from gambling, which requires a license - even if the boundaries are mostly fluid. In gambling, where a “substantial wager” is required, winning or losing does not depend significantly on the ability, knowledge or skill of those involved, but rather entirely or primarily on chance. Classic games of chance are e.g. "Lotto" or sports betting. In most of the betting games in a small circle, there is already a lack of payment alone, because the customer should not have to pay anything and the retailer is not interested in generating income with the betting game. Rather, the purpose is to have fun with the competition. But here, too, the current medal table must not simply be copied from the Internet and integrated into the shop or similar on a daily basis, because it is protected by copyright.

The competition, on the other hand, is an invitation to participate in a game in which the winner is determined by an element of chance. In principle, participation in the competition must be free of charge. The organization of sweepstakes does not require official registration or approval. The Händlerbund has provided a lot of detailed information on this (including free sample conditions of participation).

Updated 07/27/2021

We received the feedback from the DOSB and incorporated it into the text at the appropriate point. In summary, it can be said that there are no further papers and documents for retailers that deal with legally secure advertising for the Olympics, but must be clarified with the rights holders in individual cases.