A Business Guide to Navigating the 2024 Olympic Games

From the 26th of July 2024, businesses will be required to vigilantly navigate between marketing opportunities and legal risks in order to successfully capitalise from the Olympic Games. In this context, numerous legal questions notably arise for businesses in regards to the use of the Olympic rings and mascots on packaging and promotional materials; the alignment of products or services with Olympic values and themes, and the incorporation of Olympic-related references in social media marketing campaigns, etc.

Ashurst is poised to provide comprehensive guidance on the dos and don'ts of engaging with this global event.

I. The Protection of the Olympic Games and Olympic Properties

The Olympic Games and Olympic Properties are protected by various legal mechanisms.

A. The Olympic Charter

The International Olympic Committee ("IOC") exclusively owns all rights associated with the Olympic Games, which notably encompass:

• the organisation, exploitation and marketing of the Olympic Games;
• the authorisation of the capturing of images for media usage;
• the registration of audio-visual recordings of the Olympic Games;
• the broadcasting, transmission, retransmission, reproduction, display and dissemination, making available or otherwise communicating to the public, by any means now known or to be developed in the future, works or signals embodying audio-visual registrations or recordings of the Olympic Games.

The IOC is also the exclusive owner of all rights to the Olympic Properties, including their utilisation for profit-making, commercial, or advertising purposes, as outlined in article 7.4 of the Olympic Charter. These Olympic Properties encompass the following:

• Olympic symbol: "The Olympic symbol consists of five interlaced rings of equal dimensions (the Olympic rings), used alone, in one or in five different colours";
• Flag: "The Olympic flag has a white background, with no border. The Olympic symbol in its five colours is located in its centre";
• Motto: "The Olympic motto “Citius – Altius – Fortius” expresses the aspirations of the Olympic Movement";
• Anthem: "The Olympic anthem is the musical work entitled “Olympic anthem”, composed by Spiro Samara";
• Designations: "An Olympic designation is any visual or audio representation of any association, connection or other link with the Olympic Games, the Olympic Movement, or any constituent thereof";
• Emblems: "An Olympic emblem is an integrated design associating the Olympic rings with another distinctive element";
• Olympic flame and torches: "The Olympic flame is the flame which is kindled in Olympia under the authority of the IOC. An Olympic torch is a portable torch, or a replica thereof, as approved by the IOC and intended for combustion of the Olympic flame";
• Musical, audio-visual works or other creative works or artefacts commissioned in connection with the Olympic Games by the IOC.

Rule 40 of the Olympic Charter delineates the following key principles, detailing how participants should engage in and derive benefits from commercial activities surrounding the Paris Olympics Games.

• Olympic Partners can use participant images for advertising with consent from featured participants, in compliance to the terms of the relevant Olympic partner's contract and with respect to IOC and National Olympic Committee ("NOC") guidelines. Olympic Partners may also undertake congratulatory advertising (supporting and congratulatory messages) during the Games period.
• Athletes may provide simple messages of thanks on their personal social media accounts / websites to both Olympic and non-Olympic Partners. Messages directed towards Olympic Partners must not contain any statement or implication that a product/service enhanced their performance nor an endorsement of any product. Conversely, messages of gratitude directed at non-Olympic Partners are limited to one per individual non-Olympic Partner and should refrain from suggesting a commercial connection. Additionally, athletes may share or repost content from the ICO's, the Paris 2024 OCOG's, their national Olympic team's or their NOC's social media accounts.
• Non-Olympic Partners are permitted to use participant images with consent from the featured participants and in compliance with IOC and NOC guidelines. This advertising must not incorporate Olympic Properties and should be classified as Generic Advertising. Non-Olympic Partners must notify the IOC or the NOC of their Generic Advertising plans by 18 June 2024.

B. Intellectual Property Protection

The IOC is the owner of various trade marks registered worldwide in relation to the Olympic Games, including "Paris 2024", "Olympic Games", "Games of the Olympiad", "World Olympians", "Olympic Stadium", and "Friends of the Games". These registered trade marks are protected by intellectual property rights. Furthermore, well-known trade marks, such as the word "Olympique", are protected even without registration (TGI Paris, ch. 3, sect. 4, 10 Apr 2014, no° 12/15470 ).

Furthermore, any creative work, such as editions of writings, musical compositions, drawings, or paintings, may be protected by authors' rights and/or under copyright laws.

C. The Nairobi Treaty 1981

The Nairobi Treaty on the protection of the Olympic Symbol grants additional international protection to the five interlaced rings. Adopted in 1981 and administered by WIPO, the Nairobi Treaty obliges all signatories to protect the Olympic Symbol from commercial exploitation, including its use in advertisements, on goods or as a trade mark, without prior authorisation from the IOC.

Although France has not ratified this Treaty, it has adopted permanent national legislation protecting the Olympic Properties.

D. French Domestic Legislation

In preparation for the Paris 2024 Games, the French legislature reinforced the protection of Olympic Properties by adopting a specific law (Law no. 2018-202 of 26 March 2018 on the organisation of the 2024 Olympic and Paralympic Games), commonly referred to as the "Olympic Law", and integrated its provisions in articles L. 141-5 and L. 141-7 of the French Sports Code. Notably, article L. 141-5 of the French Sports Code stipulates that the French National Olympic and Sports Committee is entrusted with ownership of the national Olympic emblems and tasked with ensuring the protection of the acronym "JO", and other associated elements including the logo, mascot, slogan, and posters.

Furthermore, any act involving the registration of a trade mark or the reproduction, imitation, affixing, deletion, or modification of the national Olympic emblems listed in the French Sports Code without authorisation from the French National Olympic and Sports Committee is subject to criminal sanctions outlined in articles L. 716-9 et seq of the French Intellectual Property Code (see below). The French Law 2022-296 of 2 March 2022, aimed at democratising sport in France, expanded the protection of Olympic trade marks to include their translations.

II. Risks for Businesses

A. Infringement

Firstly, under French law, trade mark infringement may result in civil liability for damages. In this regard, the court may order the defendant to pay damages as well as complementary measures such as the seizure of any goods and equipment employed in the commission of the infringement. In addition, trade mark infringement can also result in penalties of up to four years' imprisonment and a €400,000 fine as per articles L. 716-9 et seq of the French Intellectual Property Code. Attempts to register trade marks identical or confusingly similar to those already registered by the IOC are likely to face opposition. For example, the Paris High Court ordered a €20,000 fine to a company for running a promotional campaign entitled "Olympic sales" on its website (TGI Paris, 10 April 2014, no. 12/15470).

Businesses must also consider the risk of infringement of the Olympic Properties which are subject to the same penalties as those applicable to trade marks. In this context, the Paris Court of Appeal held that a company using the names "Jeux Olympiques", "Olympic Games" and the Olympic rings on its online website violated article L. 141-5 of the Sports Code (Paris Court of Appeal, 21 January 2011, no. 09/20261).

Finally, the infringement of authors' rights can result in both civil and criminal penalties in France. Indeed, unauthorised exploitation of an original creation, whether in whole or in part, may result in three years' imprisonment and a €500,000 fine under articles L. 332-2 and L. 335-3 of the French Intellectual Property Code.

B. Free-riding and Ambush Marketing

Under French law, free-riding has a legal basis in the general principle of civil liability, set out in articles 1240 and 1241 of the French Civil Code, and is commonly defined as: “all behaviour whereby an economic agent rides on another’s coat-tails in order to take advantage, without spending any money, of its efforts and know-how” (Commercial Chamber, Cour de cassation, 26 January 1999, no. 96-22.457). Proof of fault, damage and causation are required to establish an act of free-riding. However, free-riding does not necessitate a competitive relationship between the perpetrator and the injured party (Commercial Chamber, Cour de cassation, 16 February 2022, no. 20-13.542), nor does it inherently imply a risk of confusion (Commercial Chamber, Cour de cassation, 27 January 2021, no. 18-20.702).

Ambush marketing is a prevalent form of free-riding and involves businesses associating themselves with events, like the Olympic Games, without being an official sponsor. This type of advertising can mislead the public into believing an association exists in order to unfairly exploit the efforts, investments, publicity, or reputation associated with the Paris 2024 Olympic Games.

Notably, French case law has identified the following actions as ambush marketing:

• closely timed advertising that overtly references an event, thereby establishing a direct association in the public's mind (TGI Paris, 10 Apr. 2014, no. 12/15470);
• displaying Olympic rings on screens and coasters in bars (Criminal Chamber, Cour de cassation, 17 January 2017, no. 15-86.363);
• featuring the colours of the Olympic rings and a name referencing the Olympic Games ("Le Rêve Olympique") on a pair of trainers (TGI Paris, 13 June 2014, no. 12/09737),
• reproducing a stylised flame in the colours of the Brazilian flag during the Rio 2016 Olympic Games (TGI Paris, 19 April 2019, no. 18/00264);
• using the name "Olymprix" for an advertising campaign offering promotions during the Olympic Games (Orléans Court of Appeal, 2 July 2004; Commercial Chamber, Cour de cassation, 31 October 2006, no. 04-18.043);
• using hashtags in an Instagram story suggesting a partnership with a Festival when no such affiliation exists (TGI Paris, 11 December 2020, no. 19/08543).

III. Navigating the Olympic Games

To sum up:

• be mindful that your advertising does not imply a connection between the advertised brand and the Olympic Games, a team, or an athlete, if no such affiliation exists;
• when promoting your brand on social media, be careful not to overuse Olympic-related hashtags or excessively repost content affiliated with the Olympic Games;
• ensure compliance with Rule 40 of the Olympic Charter when incorporating images of athletes in advertisements during the Olympics Games.;
• notify the IOC / NOC of any generic advertising plans by 18 June 2024 if you are not an official Olympic Partner;
• seek advice from a local expert to evaluate possible legal and reputational risks before launching any branding or marketing initiatives associated with the Olympic Games.

Authors: Nicolas Quoy, Partner; Antoine Boullet, Senior Associate; and with assistance from Muriel McCracken, Trainee.