As well as being the pinnacle of global athletic competition, the Olympics might also be considered a festival of IP protection. There are robust IP rights threaded through the Olympics at every level that are critical to safeguarding the integrity and commercial value of the Olympic brand.
Perhaps the most recognisable example is the Olympic rings, the symbol of the Olympics. This emblem constitutes an artistic work in terms of copyright and is also a trademark, giving rise to a range of protection under IP law. This article takes a closer look at IP law in South Africa and how it might be used to understand IP protection in the context of the Olympics.
The protection of Olympic brands through their registration as trademarks would be at the forefront of any IP protection strategy. The specific marks pertaining to each year’s event are likely to be registered in an extensive range of classes – particularly, those comprising goods and services applicable to merchandising (eg, clothing, ornaments and sports goods).
The registration of these trademarks enables the International Olympic Committee (IOC) to prevent their use, and the use of confusingly similar marks, without its permission. This is the key to a successful branding campaign.
The official 2021 logo is likely to be the principal event-specific mark and require the most comprehensive IP protection possible.
Registration of designs
In addition to being registered as a trademark, the official 2021 logo and other logos are likely to have been registered in South Africa as designs in several classes under the Designs Act.
Design protection is mainly used for the ornamentation of goods. However, in the case of ornaments and other three-dimensional articles, they can cover shape and configuration.
The primary value of design registrations is that they can be obtained within a short time span – compared with trademarks, which take a considerable time to be registered – and can provide useful interim protection pending the registration of trademarks.
The registration of designs would enable the IOC to prevent the use of designs that are not substantially different to their own.
Merchandise Marks Act
Section 15 of the Merchandise Marks Act 1941 contains a provision that allows the minister of trade and industry to prohibit the use of certain marks.
The IOC could rely on this provision and make an application for the prohibition of a wide range of Olympics marks. If the application were successful, the minister would issue a notice prohibiting the use of the marks without the IOC’s consent.
In fact, on previous occasions, marks such as the Olympic Rings and designations of other sports events have been granted protection virtually unconditionally.
One of the virtues of this form of protection is that breaches of the protection constitute criminal offences. This means that the rights created can be enforced under criminal law, with all of the associated measures available to counteract unlawful conduct.
“Ambush marketing” is where a non-sponsor of a major event seeks to create the impression that it is a sponsor of the event or otherwise benefit from the publicity attaching thereto. Both of these forms of conduct aim to enjoy the advantages of being a sponsor without making any financial contribution to the funding of the event.
Section 15A of the Merchandise Marks Act empowers the minister of trade and industry to declare a major sporting event or other event to be a protected event. Such a declaration gives rise to various procedures to prevent ambush marketing, with violations of the provisions considered to be criminal offences.
Copyright in artistic works
The official logo of the 2021 Olympics, as well as its other device marks and visual emblems, constitute “artistic works” for purposes of the Copyright Act.
Relying on copyright has the distinct advantage that this form of protection is available automatically and instantaneously and requires no form of registration.
Unauthorised reproduction or adaptation of any substantial part of these works can constitute copyright infringement – a useful form of protection when it comes to a major event. Copyright infringement can constitute a criminal offence, meaning that the IOC would be able to take criminal enforcement measures as the copyright owner.
The Counterfeit Goods Act 1997 provides effective criminal enforcement procedures and remedies against goods that infringe:
- registered trademarks (and well-known unregistered foreign trademarks);
- copyright; or
- rights existing as a result of a prohibition declared by the minister of trade and industry under section 15 of the Merchandise Marks Act.
The Counterfeit Goods Act is particularly useful when it comes to seizing infringing goods in the marketplace and preventing the trade thereof.
This is merely an overview of some of the forms of IP protection worth considering. However, it is clear that the commercialisation of brands connected with the Olympics contribute substantially to its success in all respects, particularly from a financial point of view. This explains why the IOC continues to maintain a strong armoury of IP weapons, to protect and capitalise commercially on its branding.