Claire Wortsman is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.
From the thrilling gold-medal finish of the women’s soccer team to Andre De Grasse becoming the first sprinter to bring home gold since 1996, there was no shortage of exciting moments for Canadians at Tokyo 2020. Penny Oleksiak made history as the country’s most decorated Olympian of all time. Jamaica’s Elaine Thompson-Herah also made history in Tokyo as the first woman to win gold in the 100 and 200 meters in consecutive Games. After posting footage of her impressive feat and her family’s celebration to Instagram, Thompson-Herah was, as she tweeted, “blocked on Instagram for posting the races of the Olympic because [she] did not own the right to do so.” The New York Times reported that a spokesperson for Facebook, Instagram’s parent company, confirmed that it removed Thompson-Hera’s video but claims her access to the app was mistakenly suspended.
The International Olympic Committee (IOC) allows athletes to share Olympic Games content on their personal social/digital media accounts or website unless it contains audio/video of the areas referred to as the Field of Play (“the area used for a sporting competition or ceremony”) or Back of House (“non-public areas, within and/or surrounding a venue”). IOC regulations are only one of the many sets of rules that surround the intellectual property (IP) of the Olympic Games. James Bikoff, who has extensive experience litigating the IOC’s trademarks, explained on an episode of IP Fridays that, depending on the country, Olympic IP can be protected by national statutes (see Canada’s Olympic and Paralympic Marks Act), the Nairobi Treaty (which Canada is not a contracting party to, but 53 other nations are), and special protection for the words “Olympic” and “Olympiad” in various languages across the generic top-level domain names (e.g. .com, .org).
Canada’s Olympic and Paralympic Marks Act (OPMA) was enacted in 2007 and includes a list of 39 protected Olympics-related marks in Schedule 1. Although one might think that this statute contains all of the necessary information on Olympics-related marks in Canada, matters are further complicated by the fact that the Canadian Olympic Committee (COC) continues to register marks not found in OPMA as official marks under the Trademarks Act. Teresa Scassa described Canada’s official marks system – which allows “public authorities” to sidestep the application and review process otherwise required – as “anomalous and downright dysfunctional.” The result of COC’s registering of official marks is that certain marks (e.g. FASTER HIGHER STRONGER) enjoy simultaneous protection as official marks and under the OPMA, and may continue to receive protection under one after being removed from the other. Another odd result is that certain marks (e.g. the TOKYO 2020 EMBLEM) are protected as an official mark but not under the OPMA, which may present difficulties as certain businesses look to the OPMA to check their compliance.
Canada is not alone in facing criticism for its extensive protection of Olympics-related IP. During her time as a trademark law professor at Drake University, Shontavia Johnson wrote that she believed the laws created solely to protect the Olympics had been stretched too far. She described her concerns, which include the high level of difficulty for companies, especially small businesses, to know when their activities are illegal and obtain permission to do the right thing. Johnson also explained that most American Olympic athletes scramble to make a living, and that the IOC and national Olympic committees exercise a tight control which may prevent athletes from profiting off of the value which they create for the Olympic Games.
Rule 40 restricts social media posts and advertisements published by athletes and sponsors during the Games, both in volume and content. These restrictions on permitted publications may deter smaller companies who cannot afford to become official Olympic sponsors but who would gladly sponsor an individual Olympian from doing so, either because they feel it would result in an unsuccessful campaign or because they are afraid of accidentally breaking the rules. In Canada, even to congratulate an athlete they sponsor, companies are not permitted to use a multitude of hashtags or words that generate social media buzz, including Tokyo 2020, Olympics, #teamcanada, and #summergames.
In light of the popularity of Olympians posting on social media platforms like Tik Tok during Tokyo 2020, it will be interesting to watch for potential clashes between athletes and governing bodies related to IP at Beijing 2022. As social media posts generate buzz and draw fans, spectators will have a chance to enjoy getting behind-the-scenes looks and instant updates from their favourite athletes. This may drive some policy changes. On the other hand, Michael Lynch, a veteran sports marketer, describes IOC’s IP as its “primary asset.” Striking a balance between generating ample revenue to support athletes and events and serving the interests of individual athletes, sponsors, and fans seems an Olympic balancing act.