31
Aug/04

Discussion of Bush Olympic Ads


The INTA listserv is vigorously debating the USOC’s and Iraqi Soccer Team’s objection to ads run by the Bush campaign referencing the OLYMPICS name and Iraqi team, respectively.  INTA archives for August are here.  One interesting post from Cliff Potter of The Potter Group is reproduced with permission here:

“Political advertisements seeking to obtain votes for President Bush claim that certain conquered and/or occupied nations were able to field Olympic Teams in light of wars prosecuted against them by President Bush.  They clearly attempt to use the Olympics and its mark(s) for the political advancement of President Bush and are therefore contrary to the spirit if not precise words of the Olympic Charter and applicable law. 

In my view, the Olympic Committee and the Iraqi soccer team were justified in objecting to the uses of their marks by President Bush and his supporters as a matter of law.  As to the US Olympic Committee and its marks, the controversy involves a unique organization and its national and international aspects.  The US Olympic Committee is an independent establishment of the US Government, one of only a very few such organizations.  Part of its charter, created by US statute, is to protect Olympic marks.  They derive their right to use the Olympic marks in a unique international context, through the Olympic Charter and from the International Olympic Committee.

The International Olympic Movement is governed by the Olympic Charter.  The Charter includes the following provisions among others:

“Each NOC is responsible to the IOC for the observance, in its country, of Rules 12, 13, 14, 15, 16 and 17 and of their Bye-law.  It shall take steps to prohibit any use of the Olympic symbol, flag, motto or anthem which would be contrary to these Rules or their Bye-law.  It shall also endeavour to obtain protection of the designations “Olympic” and “Olympiad” for the benefit of the IOC.”

The Olympics are governed by the International Olympic Committee.  The IOC Executive Board also has authority in this area. 

“The IOC Executive Board alone has the competence to determine the principles and conditions under which any form of publicity may be authorized.”

The extravagant political use of the Olympics in Nazi Germany undoubtedly resulted in today’s stringent rules against political exploitation of the Olympics.  These limits are wholly appropriate in light of both this history and the related laws.  I assume that the US Olympic Committee was required to assert its objections in light of a directive from the IOC.  In any case, it could be so directed by the IOC.

The US Olympic Committee’s power over their marks is therefore beyond the scope of the Lanham Act.  The Committee may not be required to make Lanham Act showings in order to show violations of their marks.  Indeed, to require such showings may be dangerous for these special and unique marks.  In my view, these marks and those of the other independent establishments and the United States might well be provided stronger protections than afforded under the Lanham Act for normal commercial marks.  There certainly are good policy reasons to provide such legal protection.

The US Olympic Committee is also required not to be political.

“(b) Political Activities. – The corporation shall be nonpolitical and may not promote the candidacy of an individual seeking public office.”  36 U.S.C. Sec. 220507

This statute could be interpreted to allow the US Olympic Committee to sue over a political use of its marks by others, since it suggests sponsorship by the Olympic Committee of its marks by the person(s) using them.  Again, no Lanham Act requirements would exist for such a claim.

It is interesting that this comes up at the very time when fair use is being considered by the US Supreme Court.  In addition to the Lanham Act, the Court needs to take care that it does not extend its ruling into state law areas that could affect the rights of the Olympic Committee and others.  In particular, certain state laws may also apply to the use of Olympic marks in the Bush political advertisements. 

Finally, a wide variety of other marks (including those held by certain
churches) are being used this year for political advantage by the Bush campaign.  It is entirely proper at least to consider how far such uses may be permitted under Constitutional and statutory frameworks.  If legislation is not available for these purposes, and the Constitution cannot be interpreted to preclude such uses, then perhaps legislation should be considered. 

We also need to consider whether political uses of marks are beyond the scope allowed under the Lanham Act.  If this is not done, then any use of any mark might be permitted in political contexts.  “

 



30
Aug/04

LVMH v. Dooney and Bourke


Louis Vuitton suit against Dooney and Bourke for ‘look and feel’ rejected.  Via Reuters.



30
Aug/04

Counterfeits on Canal Street


GlobeandMail.com on the NY counterfeit scene.



30
Aug/04

Blue and White Stripes


Interesting use-based application (Sec. 2(f))  no. 76420667 from Hilfiger, covering perfumery, printed materials and a wide range of clothing.   Approved for publication.

Description of Mark: The mark consists of a repeating stripe pattern applied uniformly over the goods or to parts thereof.

Lining and Stippling: The following colors and shades of colors are claimed as features of the mark: blue and white.



27
Aug/04

Based on a True Story


The Lanham Act prohibits false statements and statements that are true but intended to mislead, as to the origin or quality of goods or services. 

For a general discussion about statements intended to mislead about everything else, see Spinsanity.



27
Aug/04

Bush Campaign Will Not Pull 'Olympics' Ads


The Bush Campaign will not put ads mentioning the Oympics, citing fair use.  Via Washington Post.



27
Aug/04

Nine Lives of A Trademark


“He’s still manipulating his owner like always,” said Alan Kalter, the chairman and chief executive of Doner in Southfield, Mich., the current 9Lives agency, “but there appears to be an even deeper-bonding relationship than there was years ago, because he’s willing to do a little more” for the brand.   From “Prepare to See More of a Certain Cat and Bunny” from the NY Times (sub req), on the comeback of Morris the Cat and trademark ‘mascots’ in general.



26
Aug/04

Source Material on Regulation of Political Speech


Quote from White House Secretary in “Bush Joins McCain in 527 Ad Challenge:”

“The president said he wanted to work together [with McCain] to pursue court action to shut down all the ads and activity by these shadowy 527 groups,” McClellan said after Bush spoke to McCain by telephone this morning.

Text of First Amendment.

Buckley v. Valeo, 424 U.S. 1 (1976)

McConnell v. Federal Election Commission, 540 U.S. __ (2003)

Summary of McConnell.

Federal Election Commission website.

Bates,  “Political Advertising Regulation – Unconstitutional Menace?

Burchfeld “Enemies of the First Amendment

Pilon, “The Case For Campaign Finance Reform.”

A Newsroom Guide To Political Advertising.

University of Iowa sources on political advertising.

Resources on 527s.



26
Aug/04

Olympics Protest Bush Ad


The U.S. Olympic Committee has asked the Bush campaign to pull an ad that refers to the Olympics.  The Bush campaign runs two such ads, one of which angered members of the Iraqi soccer because it referred to them without permission (see below).  Via Reuters.



26
Aug/04

Do As I Say, Not As I Dilute, er, Do


If you dressed a BARBIE doll in ripped leather pants, bikini top, mask and whip, would Mattel take action (background here)?  Presenting the BARBIE AS HALLE BERRY IN CATWOMAN doll, from Mattel, $14.95 from Amazon.  Note to students in Sara’s trademark class: thank her for submitting this, and yes, she really can outdrink me.