China will be an enthusiastic host for the 2008 Olympic Games, but will it adequately protect the intellectual property rights associated with the event? Kenny Wong examines the IP-protection aspects of China's Olympic preparations.
Success of the Sydney Olympic Games
By nearly any measure, the Sydney 2000 Olympic Games were by far the most successful Olympic Games in history. Before the 2002 World Cup, the 2000 Olympic Games were the most watched sports event in history, with more than 3.7 billion viewers across 220 countries tuning in to watch the more than 3,500 hours of coverage produced by the host broadcaster over the 17 days of Olympic competition. The honourable spirit and philosophy of the Olympic Games no doubt played a role in the enormous success, but the main factors were the careful protection of Olympic-related intellectual property rights and an Olympic-sized marketing effort.
According to the Sydney 2000 Marketing Report, the International Olympic Committee (IOC) (the governing body of the Olympic Movement) and the Sydney Organising Committee for the Olympic Games generated approximately US$3 billion through the marketing of the 2000 Olympic Games during the period from 1997 to 2000. Most proceeds came from the sale of collective broadcasting rights, sponsorships, tickets and licences. Naturally, the effective management and protection of distinctive Olympic elements is fundamental to preserving the unique marketing platform necessary to attract income to fund the operation of the Olympic Games. The Olympic Charter (Charter) contains many provisions designed to preserve the special image and nature of the Olympic Games, and to protect the rights of Olympic organisations and marketing partners.
The Olympic Charter
The Charter governs the organisation and operation of the Olympic Movement and stipulates the conditions for the celebration of the Olympic Games. Each National Olympic Committee (NOC), organisation, athlete and entity that participates in the Olympic Movement must follow the Charter as administered under the supreme authority of the IOC.
Under the Charter, all rights to the Olympic symbol, the Olympic flag, the Olympic motto and the Olympic anthem belong exclusively to the IOC. The Olympic symbol, consisting of the five coloured Olympic rings (blue, yellow, black, green and red) is one of the most recognised icons in the world. The rings represent the union of the five continents and the meeting of athletes from throughout the world at the Olympic Games. The Olympic flag has a white background with no border and the Olympic symbol located at the centre. The Olympic motto is 'Citius. Altius. Fortius' meaning 'Faster. Higher. Stronger.' The Olympic anthem is the one approved by the IOC at its 1958 session in Tokyo. The use of any of the distinctive Olympic elements for advertising, commercial or profit-making purposes is strictly reserved for the IOC. The IOC also holds all rights relating to the use of the Olympic flame and Olympic torch.
The IOC aggressively protects its intellectual property rights. Even the use of the Olympic symbol, flag, motto or anthem by a NOC within accepted non-profit-making activity parameters is regulated by the Charter and subject to approval by the Executive Board of the IOC.
A NOC or an Organising Committee of the Olympic Games (OCOG) may create an Olympic emblem which associates the Olympic rings with another distinctive element. However, the use of an Olympic emblem by any NOC or OCOG, either directly or through third parties, must comply with the Charter's bye-law concerning territorial and time restrictions. Furthermore, all contracts entered into by the OCOG which contain an advertising element - including the right or licence to use the Olympic emblem - must be in conformity with the Charter and with the instructions given by the IOC Executive Board.
Besides protecting various Olympic emblems, the Charter requires that, in respect of any musical work commissioned by the NOC or OCOG in connection with the Olympic Games, the IOC must be designated the owner of the relevant copyright.
A new emblem for 2008
The Beijing 2008 Olympic Games Bid Committee (BOBC) designed an Olympic emblem which modified the Olympic symbol to resemble a person performing tai chi. The emblem was approved by the IOC in September 2000 and is intended to symbolise gracefulness, harmony, vitality, unity, co-operation, exchange and development. The official Beijing 2008 Olympic emblem is now the subject of a design competition organised by the Beijing Organising Committee of the 2008 Olympic Games (BOCOG). The deadline for entries is 8 October 2002.
If some national law or trademark registration rule grants the right to an Olympic symbol to a NOC, the Charter provides that such NOC may only use those ensuing rights in accordance with the instructions of the IOC Executive Board. Hence, the Charter ensures that the IOC is able to maintain full control over all Olympic-related intellectual property despite any national law to the contrary.
Host City Contract
In addition to restrictions imposed by the Olympic Charter, the Beijing Host City Contract for the 2008 Olympic Games (entered into by the IOC and the Beijing Municipality) will impose further obligations upon the host city to protect and enforce Olympic-related intellectual property rights. Articles 39 -41 of the contract extend the provisions of the Olympic Charter to make sure that all Olympic-related intellectual property developed by the BOCOG and the China Olympic Committee (COC) will belong to the IOC - either immediately upon its creation, or immediately following the completion of the Olympiad on 1 January 2009. The articles also outline the level of protection of Olympic-related IP rights that the IOC expects from each of the Beijing Municipality, the BOCOG and the COC.
The Sydney Experience
Prior to the Sydney 2000 Olympic Games, the Australian government established a body of legislation to protect the Olympic Movement. From an intellectual property point of view, the Olympic Insignia Protection Act 1987 (1987 Act) and Sydney 2000 Games (Indicia & Images) Protection Act 1996 (1996 Act) are of particular significance.
The 1987 Act deemed the Olympic symbol an artistic work in which copyright subsists indefinitely and made the Australian Olympic Committee (AOC) the owner of the copyright. The 1987 Act also deemed the AOC the owner of certain registered Olympic designs. It provided that the Olympic symbol, the Olympic motto, the Olympic torch and flame and certain other registered Olympic designs (or anything so resembling) should not be registered as trade marks in Australia and that use of such Olympic elements should be subject to licensing arrangements. In respect of the commercial use of Olympic expressions including 'Olympic', 'Olympics', 'Olympic Games', 'Olympiad' and 'Olympiads', the Act required the AOC to maintain a register which included the prescribed particulars of relevant licences. The Act also required the Designs Office of Australia to keep a register of Olympic designs showing the particulars of such designs and their period of protection.
Under the 1987 Act fair dealing with the Olympic symbol for the purpose of, or associated with, the giving of information (including the reporting of news) was permitted. The use of any Olympic expressions in a fair and honest manner not suggesting sponsorship or sponsorship-like support for the Sydney 2000 Olympic Games was also allowed. In the event of an infringement, the AOC could apply to the court for an order for corrective advertisements as well as for any of the usual remedies of injunction, damages, accounting of profits and the destruction and delivery up of the infringing items.
The subsequent 1996 Act included similar provisions to regulate the commercial use of the indicia and images associated with the Sydney 2000 Olympic Games and the Sydney 2000 Paralympic Games.
In addition to relying on the above noted legislation, the Sydney Organising Committee developed programmes to educate consumers, the media and the business community about the problem of unauthorised marketing activity. The committee entered into agreements with print and electronic media owners to monitor advertising and prevent any unexpected activity using Olympic elements and the committee's legal counsel department formed a specialised brand protection team to manage the legal and marketing issues related to brand protection. The committee also commissioned investigators to conduct regular surveillance of well-known pirate outlets and to report on infringements.
China's Existing IP regime
China made unprecedented strides toward establishing a complete intellectual property regime in the ten years following the coming into force of the Trademarks Law in 1983. In contemplation of and following China's accession to the World Trade Organisation (WTO), recent substantial changes have been made to the Patent, Copyright and Trade Marks Laws. Such changes expand and fortify protection for IP right owners in line with the practices and expectations of WTO member countries.
The PRC's IP legislation already offers an acceptable level of protection to the distinctive Olympic elements. However, in view of the requirements under the Olympic Charter and the Host City Contract, the authorities are keen to ensure that all uses of Olympic elements are properly monitored. Therefore, they have promulgated specific laws and codified specific practices to recognise and protect Olympic-related intellectual property rights and further enhance the existing IP regime.
Olympic-specific IP rights protection
On 20 August 2001, shortly following the success of Beijing's bid to host the 2008 Olympics, the Preparatory Office of the BOCOG, the Office of the Beijing 2008 Olympic Games Post-Bid Committee and the COC made a joint public announcement. The announcement stated that any use of the Olympic symbol, the Olympic flag, the Olympic motto, the Olympic anthem and Olympic expressions would be permitted only for non-commercial purposes and only by approval of the IOC through the COC. No use of the tai chi emblem of the BOBC will be allowed without the prior consent of the BOBC (succeeded by the post-Bid Committee and then the BOCOG). The announcement effectively deterred advertisers who sought to associate their advertisements with the Olympic symbols during the celebration period following the success of the bid, and discouraged others who planned to exploit the tai chi emblem for commercial purposes.
On 1 November 2001, the Beijing Municipality, Protection of Olympic Intellectual Property Rights Provisions (Provisions) came into effect. The Provisions were formulated to strengthen the protection of Olympic intellectual property and other rights of Olympic proprietors in Beijing and to support the healthy development of the Olympic Movement. In addition to defining the rights of various Olympic IP rights owners (such as the IOC, COC, BOCOG and authorised licensees), the Provisions also identify acts which constitute infringement. Such acts include the unauthorised use of the Olympic or similar elements (including use as the name of a web site or domain) and any acts assisting such infringement. It is interesting to note that the Provisions seem to be based on the premise that all entities should safeguard Olympic-related intellectual property and they require advertisers, advertising agents and advertisement publishers to verify any authorisation to use Olympic-related intellectual property. In order to encourage enforcement, infringement-reporting entities may be rewarded. If you visit the official Beijing Olympic web site at http://www.beijing-2008.org, you will see that a page on the site is dedicated to the reporting of infringement. If the infringing activity is not covered by any specific legislation a fine between RMB 1,000 and RMB 30,000 may be levied. If the activity involved constitutes a crime, criminal sanction will also be imposed.
On 1 April 2002, the Regulations on the Protection of Olympic Insignia (Regulations) also came into force. As above, the Regulations offer protection in addition to that already offered by the PRC's IP regime. The scope of the Regulations encompass not only the Olympic symbol, Olympic flag, Olympic motto, Olympic anthem and Olympic expressions; but also the names, emblems and symbols of the COC, BOBC, BOCOG, the 29th Olympic Games and other symbols prescribed in the Charter and the Host City Contract. The Regulations provide that the respective rights of the above entities shall be determined in accordance with the Charter and the Host City Contract. They also define what is meant by 'use for commercial purposes' and require that all Olympic elements and licences for their use must be recorded with the State Administration for Industry & Commerce (AIC).
Under the Regulations, a party to an infringement dispute may elect to resolve the dispute by mediation. If either party refuses to mediate or mediation is unsuccessful, a complaint can be lodged with the AIC or a civil suit filed with the court. The court may, of course, order an injunction and confiscation of the infringing items and related tools. In addition, the court may order the confiscation of illegal gains and impose a fine of not more than five times such illegal gains. If there were no illegal gains, a fine of not more than RMB 50,000 may be imposed. In addition, compensation will also be payable to the owners of the relevant intellectual property rights. The AIC is also generally vested with power to investigate any infringement and to enforce Olympic IP rights.
A Customs recordal system for IP rights has been in force in China since October 1995 and enables Customs to check and detain suspected infringing goods at the ports. On 3 April 2002, the State Administration of Customs of the PRC publicly announced its intention to protect Olympic-related intellectual property rights pursuant to the Regulations. The announcement warned that Customs will confiscate any infringing items being imported or exported. On 20 May 2002, Customs further announced the successful recordal of the Olympic insignia by the rights owners and published a list of such insignia and their specimens.
On 1 June 2002, the Measures for the Recordal and Administration of Olympic Insignia (Measures) were implemented. The Measures require the owners of the Olympic insignia to record the insignia and any licence to use such insignia with the Trademark Office. Any licence to use Olympic insignia is required to be in writing and to be recorded within one month from its signing. The licence must include the particulars of the Olympic insignia, its recordal number, the licensed products or services, the licensed territory and the duration of the licence. To assist with enforcement, all authorised use of the Olympic insignia must be accompanied by the recordal number of the licence. Any party in contravention of the Measures shall be liable to a fine of up to RMB 10,000.
Although it is still several years before the 2008 Games, China appears determined to host the most successful Olympic Games ever. The various Olympic-specific regulations and measures discussed above are intended to educate the public to respect the Olympic-related symbols and intellectual property rights, and to assist the authorities in administration licensing and enforcement action against unauthorised use. No doubt, China is going to take all practical steps to ensure the protection of Olympic-related intellectual property rights, as well as the success of the Olympic Games themselves.
This article was first published in "Hong Kong Lawyer" magazine, October 2002 pp45-49.
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