It’s less than a fortnight to the Rio Olympic Games. This calls for a special post on IP and the Olympics. Did you know that rules surrounding the Olympic Games could, in the coming days, result in the latest Nike ad featuring Deepika Padukone being taken off air for a few weeks? If you haven’t already seen it, watch the ad here. Read on as I delve into Olympic related IP aspects, particularly a controversial Rule 40 of the Olympic Charter and its relevance to India in this two-part post.
Protecting Olympics-related IPRs
India is sending its largest ever contingent of 121 (one hundred and twenty one) athletes to the Summer Olympics and 20 (twenty) athletes to the Paralympics, compared to 83 (eight three) athletes we sent to London for the Olympics and 10 (ten) to the Paralympics. Both the Indian men and women squads of our hockey team have qualified for the Olympics after a long dry spell. To top it all, as a special treat, full course Indian food will be part of the Olympic village menu.
In the context of the Olympic Games, two types of IP rights are important (i) the use of athlete’s attributes – their image, name, sports performances and (ii) the use of marks in relation to the games themselves like the word, ‘Olympic’ or ‘Olympic Games’ or the ‘Summer Games’ or even the use of certain words related to the Olympics, depending on the context, such as use of otherwise generic words like “Rio” and “2016” together, or use of words such as “Victory”, “Challenge”, “Summer”, “Medal”, etc.
The prohibition on unlicensed use and guidelines on appropriate use cover a wide gamut of marks and attributes, from the predictable to the very bizarre. For example did you know that even official sponsors to the Olympic Games need to make sure they portray the Olympic mascots in only very specific and approved poses? And did you know that during the Olympic Games advertisers using otherwise generic words like ‘gold’, ‘silver’ or ‘bronze’ without approval from the International Olympic Committee (“IOC”) may find themselves in a legal soup?
There are various rights, which apply to different advertisers, depending on their relationship with the Games. There are (i) official worldwide sponsors such as Coca-Cola and McDonalds; (ii) sponsors of each National Olympic Committee (“NOC”), which differ from country to country; (iii) official supporters such as E&Y and CISCO and (iv) official suppliers to the Olympics such as Nike, Microsoft, Airbnb etc. Each of them is given a different set of rights. These are set out in their agreements with the IOC or the NOC. A worldwide partner having paid more for sponsorship will be provided a greater set of rights than an official supplier.
Particularly relevant in protecting an official Olympic sponsor’s exclusivity and preventing an athlete’s image from being associated with the Games is the blackout period. This will come into effect as soon as July 27, 2016 (nine days before the opening ceremony) and will be in place till August 24, 2016 (three days after the closing ceremony) for the Olympics and August 30, 2016 to September 21, 2016 for the Paralympics (“Blackout Period”). The Blackout Period originates from the Olympic Charter and Rule 40. The IP Kat wrote a post here on Rule 40 in the context of London 2012. The Rule has been amended since then with the intent of making it more athlete and sponsor friendly.
Bye-law 3 to Rule 40 of the Olympic Charter states, “except as permitted by the IOC Executive Board, no competitor, coach, trainer or official who participates in the Olympic Games may allow his person, name, picture or sports performances to be used for advertising purposes during the Olympic Games.”
Rule 40 applies only to athletes, coaches, trainers and officials participating in the Games. Advertisers are not directly governed by this Rule.
In 2015, the IOC announced an amendment to Rule 40. Personal sponsors of the athletes who are not official sponsors to the Olympic Games would now be able to associate with the athlete during the Games, including the Blackout Period. The campaign may use the name, image or details of a sports performance of a competitor, coach, trainer or official (“Participant”) in combination with a company or brand subject to the following:
- The campaign should be an already existing campaign, which runs from a period before the Olympic Games till the end of the Games.
- The campaign should adhere to the guidelines set in place by the relevant National Olympic Committee. To this end, the US and UK have both put in place guidelines for Rio.
- The campaign should have been submitted in advance for approval to the NOC or the IOC as relevant. As per the US and UK guidelines, the deadline for submitting applications for waivers was January 27, 2016 this year. The campaigns, involving personal sponsors, were required to have begun no later than March 27, 2016.
- The advertising should not create any impression of a commercial connection with any Olympic property and the Olympic Games. This means that the athletes may appear in generic advertising that does not use Olympic property such as the Olympic rings and terms such as “Rio 2016”, “gold”, “silver”, “bronze”, “victory”, ‘Olympic’, ‘Olympic Games’, ‘Citius-Altius-Fortius’, ‘Effort’, ‘Performance’, ‘Olympian’, ‘Rio de Janeiro’, etc.
The Rio Games will be the first Olympic Games where these changes will be put to test.
Nike, Rani Rampal and Rule 40
The latest Nike ad to promote Indian women athletes features one Olympian, Rani Rampal, who is set to represent India as part of the Indian national women’s hockey team in Rio. Rani’s ability to license her personal sponsor, Nike, to promote their association during the Olympic Games will depend on whether Nike has applied for a Rule 40 waiver. Even if they have applied for a waiver, internationally the practice being followed is that the campaign should have started in March 2016 for it to qualify as a ‘pre-existing campaign’. The Nike campaign released as late as July 2016.
If proper permissions have not been taken, the screening of this advertisement may have to be discontinued before July 27 or Rani risks sanctions from the IOC. Though Nike is an official supplier to the IOC, its rights are limited, not as wide as the rights given to official sponsors and would likely require prior approvals for use of athlete images under Rule 40.