1
Sep/04

Yet More on Use of the OLYMPICS Name


John Berryhill responds on the INTA Listserv to prior postings on the use of the OLYMPICS name by Bush campaign ads:

> 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…

It is a factual claim (i.e. a claim that purports to be a statement of fact), and not one that suggests the IOC endorses his position.

There is no shortage of professional skating shows which feature “Olympic Gold Medal Winning” performers, or trainers and facilities that have trained Olympic competitors (e.g. http://www.iceworks.net/figure_private.shtml).
That these performers have won gold medals or competed as or coached Olympic athletes are statements of fact.  The fact of having won awards at the Olympics is certainly one which the performers and their employers are allowed to state.  Intellectual property law, or the special protection given the USOC, is not an instrument for preventing the statement of facts.

In 1980, President Carter could certainly say that the United States was not permitting a team to participate in the Olympics.  He did not have to refer to them as “those quadrennial games being held in Moscow”, “that athletic ritual based in a pagan religion” or some other term.  Such circumlocutions are not required to make a reference to the Olympics in the course of making a factual statement.  He could certainly state “We are not going to the Olympics.”

> 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 a matter of free speech law, they are certainly justified to state their opinions as well.

> 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…

As a matter of law, then, should Mr. Bush be subject to damages and/or an injunction for the statement?  Should the injunction be against Mr. Bush uttering the word at all, or in subjective contexts?  Or would an impeachment proceeding be required?

> 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…

As intended in the legislative history of the FTDA.  “Political advertising and promotion is political speech, and therefore not encompassed by the term ‘commercial.’  This is true whether what is being promoted is an individual candidacy for public office, or a particular political issue or point of view….”  134 Cong. Rec. H 1297 (daily ed. April 13, 1989) cited in _MasterCard International, Inc. v. Nader 2000, et al._, 70 U.S.P.Q.2d 1046 (S.D.N.Y. 2004) (Candidates use of “priceless” ad parody was political speech, and thus categorically exempted from coverage by the Federal Trademark Dilution Act.)

In the context of political speech, we start with the First Amendment and work down.  We do not start with the Lanham Act and work up.  The free expression of political discourse in the United States still does, surprisingly to some I am sure, outrank anything which is protected by the Lanham Act, as we labor under a perhaps quaint notion that the United States represents a set of values broader than individual accumulation of wealth.

 

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