THE BIG GAMES IS UPON US

With the opening ceremonies of the Games of the XXX Olympiad just a few days away, the media are awash in stories about the U.S. Olympic Committee’s trademark bullying.  (Olympic Gyro, a mainstay of Philadelphia’s Reading Terminal Market, it is reported, has been pressured into changing its name to Olympia Gyro.)  The Committee’s aggressive tactics are rationalized as essential to protecting a financial model that is highly dependent on the sale of official sponsorships, giving certain commercial enterprises that pay dearly for it the right to use the Olympic name and symbols.

Trademark enforcement by sellers of official sponsorships is especially obnoxious when it spills over into an attempt to monopolize the language itself, a phenomenon I first noticed back in 1999, when Atlanta Falcons coach Dan Reeves, in an ad for I-forget-what- pharmaceutical, remarked that it had allowed him to return just weeks after coronary bypass surgery to coach “the biggest game of the year.”  Could the NFL really stop him from saying “Super Bowl XXXII”?  (And what is it with trademark bullies and their roman numerals?)  Must your local appliance store resort to euphemisms like “get your big screen TV delivered in time for the big game”? A quick refresher on the oft-neglected trademark doctrine of nominative fair use after the jump.

Nominative fair use is a defense to a charge of trademark infringement, even where the plaintiff trademark owner has been able to meet its burden of showing some likelihood of confusion.  The three-part test adopted by several courts is: (1) the product must not be readily identifiable without use of the mark; (2)
only so much of the mark may be used as is reasonably necessary to identify the
product; and (3) the user must do nothing that would, in conjunction with the
mark, suggest sponsorship or endorsement by the trademark holder. The classic case of a nominative fair use is the auto repair shop that accurately states that it services Volkswagen cars.  Could advertisers that wish to refer to the Super Bowl push back against NFL bullying rather than resorting to the “big game”?  I think so.  The “big game” does not readily identify the Super Bowl to most people, at least not outside the one or two weeks leading up to it.  I find it hard to believe anyone would interpret “with Formula X I was able to recover and coach in the Super Bowl” or “get your TV delivered in time for the Super Bowl” a suggestion of any sponsorship or endorsement by the NFL.

Caveat:  The U.S. Olympic Committee’s rights were created by a special statute, 36 U.S.C. § 220506 in 1978 and do not arise under general trademark law principles.  Whether nomintive fair use would be recognized as a defense to an action under that law, which states that the Committee has “the exclusive right to use . . . the words ‘Olympic’, ‘Olympiad’, ‘Citius Altius Fortius’, ‘Paralympic’, ‘Paralympiad’, ‘Pan-American’, ‘America Espirito Sport Fraternite’, or any combination of those words” is not clear.

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