Jamie Goodman is a first year law student at Osgoode Hall and is taking the Legal Values: Challenges in Intellectual Property course.

The public domain in trademarks is composed of images, words, and phrases that cannot reasonably be granted exclusive protection because they are either generically descriptive, or because they are part of some shared cultural history.  A stranger to IP would likely assume that marks associated with the Olympics would fall under the latter category, considering that the international event has been around for centuries and is premised on sportsmanship, community, and good will.  In Canada, though, Olympic marks actually receive an unprecedented amount of legal protection, attaining a level of exclusivity that is beyond that of “official marks” status.  With the legislation of the Olympic and Paralympic Marks Act (OPMA) in 2007, Olympic-related marks (such as the rings or the Olympic flame) are essentially as far away from the public domain as possible.  While there are indeed positive benefits provided to official sponsors, the OPMA has negative consequences that run contrary to the inclusive Olympic “spirit” and to the economic incentives behind hosting the Games.

The reason that the Olympics have such tremendous marketing potential (and thus have been made exclusive through the unique legislation that is the OPMA) is because they appeal to individuals’ personal ambitions and, more importantly, to a shared sense of nationalism and pride.  There seems to be something inherently undignified about monopolizing the profit-making potential of these sentiments.  On the other hand, the gradual commercialization of sport places as much (if not more) emphasis on business competition as it does on the actual athletic competition, and so it makes perfect sense that the International Olympic Committee (and its Canadian trustees) is stringently protecting this marketing goldmine.

The Olympics have rightfully enjoyed official marks status in Canada since 1983, but evidently this amount of protection was not sufficient to properly defend authorized use of Olympic marks in our overly commoditized society.  The International Olympic Committee (the ultimate owner of all things “Olympic”) has long recognized the marketing, sponsorship, and investment potential behind the Olympics, and as such they made the OPMA a condition precedent to Vancouver’s hosting of the Games; not surprisingly, similar legislation has already been passed in London.
The rationale behind the advanced protection is credited to the abundance of possible trademark violations that are likely to occur in a very small window of time (between now and 2010), and to curtail ambush marketing.  The OPMA has therefore given the Vancouver Organizing Committee (VANOC) absolute authority and discretion in prohibiting use of the Olympic marks.  Most significantly, because of the impending Olympic deadline, VANOC has been awarded a procedural pass, allowing them to issue injunctions without going through the traditional legal channels, offering those accused of violation with no opportunity to seek judicial review nor any mechanism to challenge the validity of the OPMA’s extreme limitations.

Ambush marketing is a practice that commonly occurs with major sporting events, whereby a business intentionally deceives consumers into thinking that they are official sponsors of the event and, in doing so, undermines their competitors who hold official (expensive) sponsorship titles.  For example, in 2006 Lufthansa led the public to believe it was a sponsor of the Fifa World Cup by painting a soccer ball design on its airplane, even though it had no official connection to the games.  Certainly, the OPMA’s expeditious injunction process will help to curtail this kind of subversive and unfair competition, but it will also greatly restrain small businesses that have no deceptive intentions and are merely trying to increase revenue by associating with a major current event.

Hosting the Olympics is an important opportunity for Canada to boost its economy through increased consumerism, yet the OPMA reserves profits only for those who can afford to pay for sponsorship titles (many of whom are multinational corporations not based in Canada).  Meanwhile, Canadian businesses that cannot afford this title are required to restrain the management of their enterprises by ignoring the presence of the Olympics.  Teresa Scassa (2008, “Faster, Higher, Stronger”) points out that these “super trademarks” not only restrict the ability of businesses to market themselves (which is arguably an infringement on the freedom of commercial expression), but also places restrictions on our natural instinct to identify with and embrace the massive spectacle that is taking place in our own backyard.

Although some level of trademark protection for the Olympics is necessary, the extent to which it has been legislated in Canada is concerning.  While ambush marketing could certainly be characterized as unsportsmanlike conduct, so too could not letting anyone else play.