24 January 2020

"Olympia-Suspicious" Marketing In View Of The Summer Games In Tokyo?

SKW Schwarz


SKW Schwarz
Since Leipzig's bid for the 2012 Summer Olympics, which took place in London rather than in Leipzig, the industry has repeatedly
Worldwide Media, Telecoms, IT, Entertainment
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Since Leipzig's bid for the 2012 Summer Olympics, which took place in London rather than in Leipzig, the industry has repeatedly been concerned with the special legal protection of trademarks under the German Act for the Protection of the Olympic Emblem and Olympic Designations (OlymSchG).

Since the Act entered into force 15 years ago, it has repeatedly led to uncertainty in marketing departments and sometimes hectic calls to the legal departments, alternating between the Summer and Winter Games and in the run-up to the major sporting event. In the aftermath of the respective Olympic Games, the courts often deal with the legal issues of the so called ambusher, who, from the point of view of the German Olympic Sports Confederation (DOSB), seem all too creative by marketing their goods or services in the waters of the Games using "Olympic" images, logos or designations. According to the DOSB or the IOC, the mere associative link between the range of goods and services and the marks reserved for the Olympic Games should be prohibited. So the economic use of the pure thought of the games should be the sole responsibility of the DOSB/IOC.

The Federal Court of Justice has not been comfortable with this idea ever since. Since its first ruling on the OlymSchG in May 2014, which concerned the advertising of contact lenses for "Olympic Pricing" and the granting of an "Olympic discount", made it clear how high the bar is for the DOSB, so that advertising can be covered by the protective purpose of the OlympSchG and banned as unfairly exploiting reputations. It is not enough for an advertising recipient to associate "Olympia" and somehow think or be reminded of the Olympic Games. What is required is "an image transfer contrary to the objectives of the Olympic movement", i. e. a transfer of the "appreciation of the Olympic Games [...] to the goods or services advertised". This, however, requires quite concrete clues in the individual case and their proof by the DOSB.

The Federal Court of Justice also gave clear instructions to the users of the law regarding the further infringement of the OlymSchG, the likelihood of confusion through mental association, which is to be understood and applied as in Trademark Law. There is only a danger of confusion if the advertising gives the impression that there are economic or organizational connections between DOSB/IOC, for which the simple idea of Olympia is not sufficient. The case-law is based on a consumer who distinguishes "between the advertising of a sponsor and other advertising references to the Olympic Games". In a nutshell: Where the normally informed person recognizes that the advertisement is not an official sponsor advertisement, the OlympSchG does not apply either.

In 2017, the DOSB further failed before the Regional and the Higher Regional Court of Munich with its request to ban an event organiser from using the term "Bauernhofolympiade" ("Farmer's Olympic Games") for an event at which sporting competitions were held on a farm with materials and equipment typically available there (e.g. hay bales, horseshoes, wheelbarrows). According to the Higher Regional Court, there is no likelihood of confusion here either, because although the word "Olympiade" may trigger associations with the Olympic Games, no one seriously expects there to be economic and organisational links between the organiser of the "Bauernhofolympiade" and the DOSB/IOC.

The DOSB also lost before the Higher Regional Court of Stuttgart, where it fought against the advertising of a retail company in which round barbecue patties were depicted on a grate (not quite unlike the Olympic rings) and where a clear reference to the 2016 Summer Games in Rio de Janeiro had been established by a claim and the timing of the advertising.

This narrow radius was again confirmed by the Federal Court of Justice in March 2019 and the advertising with slogan "olympia suspect" und "olympia ready" was considered permissible.1 The BGH also opposes the monetization efforts of the DOSB, which originally has a very strong connection to the Olympic Games, so that the idea of economic organizational connections would not have been completely remote – unlike, for example, burger meat patties on a barbecue grill.

In the latest decision of the Federal Court of Justice, the focus was on online advertising for sportswear with the words: "olympia suspicious: break your own records with the right sportswear"; "simply ready for the olympics... It doesn't have to be Rio, there are small and big athletes all over the world! And with the right clothes, you feel like one of them. The great sports shirts and polo shirts are just Olympic." Here, too, the Federal Court of Justice saw the terms "olympia suspect" and "ready for the Olympics" more as a product-related synonym for an exceptionally good performance than as an unfair use of Olympic terms. Even the depiction of a medal in the hand of an athlete integrated in the website and advertising is permissible from the point of view of the Federal Court of Justice. Because medals cannot only be won at the Olympic Games.

A glance at the decisions of the Federal Court of Justice and the Higher Regional Courts shows that advertisers can use a broad toolbox to ignite Olympic fire for their (brand) products – even if they are not a contractually bound partner of the DOSB and IOC. Although it is not possible to reliably predict the DOSB's future litigation behavior, the latest Federal Court of Justice ruling and the clear rulings from Munich and Stuttgart will certainly not remain without consequences. As long as advertising companies comply with the now once again extended legal limits of the OlympSchG, there is no threat of trouble from Frankfurt am Main – the seat of the DOSB.


1. Federal Court of Justice, Judgement of 07/03/2019, I ZR 225/17 – Olympic.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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