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Earlier this year, we posted updated guidelines about engaging in or accepting advertising or promotions that directly or indirectly allude to the Super Bowl without a license from the NFL or the Final Four Tournament without a license from the NCAA.  See here, here and here.  Now, it is time to think about these issues in the context of the 2024 Paris Olympics!

The guidance from our prior blog posts addressed the following subjects, and offered warnings about conducting any of these activities when tied to any trademarked phrase referring to events like the Super Bowl or March Madness:

  • Advertising that refers to the event or other associated trademarks;
  • Advertising that uses non-trademarked terms that will be understood by the public to refer to the event;
  • Conducting or sponsoring events and parties for viewing the event;
  • Sweepstakes or giveaways that use the name of the event as part of its name or offer prizes that include game tickets;
  • Offering “special” coverage relating to the event, accompanied by advertising;
  • Congratulatory advertising; and
  • Whether disclaimers will provide a defense to a claim.

The concepts advanced in those discussions apply equally to the Olympics, but the US Olympic & Paralympic Committee (USOPC), formerly the United States Olympic Committee (USOC), has a unique weapon in its arsenal, so there are additional considerations of which you should take note.

Ted Stevens Olympic and Amateur Sports Act

In addition to having trademark rights based on registration and use of its marks, the USOPC is the beneficiary of a special federal statute, the Ted Stevens Olympic and Amateur Sports Act, which grants it the exclusive right to use various words and logos commercially or in connection with an athletic event, performance or competition.  These marks include “United States Olympic Committee,” “Olympic,” “Olympiad,” “Pan American,” “Cities Altius Forties,” “Paralympic,” “Paralympic” and the symbol of the International Olympic Committee – the five interlocking, blue, yellow, black, green and red rings (shown below).

As a result, unlike other trademark owners, to make a claim against a third party’s use of a mark, the USOPC does not need to assert that the use of the mark is likely to create consumer confusion, dilute the distinctiveness of the USOPC’s marks or tarnish the USOPC’s marks.  If any of the marks are used, even in a context far removed from the events beginning in Paris this weeknd, liability can be found.  Only if the mark being used is similar, but not identical, to an Olympic insignia, must the USOPC show a likelihood of confusion.

Continue Reading Ring! Ring! Ring! Ring! Ring!   It’s the Olympics Calling!

It was almost exactly one year ago that we reported that the National Collegiate Athletic Association filed a trademark infringement action in federal court against a company that ran online sports-themed promotions and sweepstakes under the marks “April Madness” and “Final 3.”  The NCAA prevailed because the defendant entered into an agreement not to use the marks, but failed to file an answer to the complaint.  A default judgment was entered.  On February 23, 2018, the NCAA filed a motion requesting an an award of attorneys’ fees against the defendant in the amount of $242,213.55.

The amount of attorneys’ fees incurred in a case that was resolved with relatively little resistance illustrates the level of importance that the NCAA places on taking action against activities that “play off” the NCAA Collegiate Basketball Playoffs.  Clearly, such activities continue to carry great risks.  Accordingly, following is an updated version of last year’s blog post on this subject.

With the NCAA Basketball Tournament about to begin, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use terms and logos associated with the tournament, including March Madness®, The Big Dance®, Final Four® or Elite Eight,® each of which is a federally registered trademark. Continue Reading Solve for “X”:  NFL is to Super Bowl® as USOC is to Olympics® as NCAA is to X® (There Is More Than One Correct Answer!) – Trademarks and March Madness

Last month, we posted some updated guidelines about engaging in or accepting advertising or promotions that directly or indirectly allude to the Super Bowl without a license from the NFL.  “As Super Bowl Approaches, Advertisers Should Be Aware of The NFL’s Efforts to Protect Its Golden Goose – 2018 Update”  Now, that is behind us (for another year), it is just in time to think about these issues in the context of the Winter Olympics!

The guidance from last month’s blog addressed the following subjects:

  • Advertising that refers to the Super Bowl or other NFL trademarks;
  • Advertising that uses non-trademarked terms that will be understood by the public to refer to the Super Bowl;
  • Conducting or sponsoring events and parties for viewing the Super Bowl;
  • Sweepstakes or giveaways that use “Super Bowl” as part of its name or offer prizes that include game tickets;
  • Offering “special” coverage relating to the Super Bowl, accompanied by advertising;
  • Congratulatory advertising; and
  • Whether disclaimers will provide a defense to a claim.

The concepts advanced in that discussion apply equally to the Olympics, but the US Olympic Committee has a unique weapon in its arsenal, so there are additional considerations of which you should take note. Continue Reading The Super Bowl is Over – Let’s Talk About the Olympics and Trademarks

Over the last several months, we have written about the risks of publishing ads or engaging in promotional activities that refer to the SUPER BOWL® or MARCH MADNESS® without first asking the NFL or the NCAA, respectively, for permission to use those marks.  With millions of viewers about to tune into the OLYMPIC® games in Rio this August, we similarly remind our readers that any Olympic trademarks, symbols or other branded content should not be used in advertising and marketing campaigns across any media platforms (on-air, websites, social media sites, in hashtags, apps, etc.) except by authorized advertisers.  And, for the reasons we discuss below, dealing with these marks deserve an Olympic-size dollop of caution.

We’ve written before (here and here) how Olympic sponsors pay big bucks for the rights to sponsor the Olympics, and to get exclusivity to associate their brands with the games. Thus, the sponsors guard their territory carefully, as do the Olympic organizations whose ability to stage the games is dependent on such sponsorship.  Numerous small businesses, nonprofits, and even individuals have been on the receiving end of cease and desist letters, including, for example, a knitting group that used the term RAVELYMPICS for a knitting competition, a charcuterie in Portland named OLYMPIC PROVISIONS, and a Philadelphia sub shop named OLYMPIC GYRO. Continue Reading Avoiding Olympic Hassles – Trademark and Other Legal Protections Limit the Use of Olympics, Paralympics and Related Terms in Advertising, Marketing, and Promotions

It’s that time again when broadcasters and advertisers need to watch their commercials and promotions to avoid improper uses of trademarked phrases – with the Super Bowl only weeks away, the Winter Olympics to follow soon thereafter and March Madness to follow closely after that.  Already, Stephen Colbert is making jokes about not using the Olympic rings in promotional announcements (see the first segment of last night’s show), so you know that the issue is arising at media outlets across the country.  As we do every year when the Super Bowl and March Madness roll around (and every other year at Olympics time), we remind broadcasters to scrutinize their advertising and promotions to avoid anything that appears to imply a tie in with any of these events – especially where the protected name of the event is used in the ad or promotion itself. (See past articles here and here). 

The Super Bowl and March Madness are both trademarked terms, and violations of the trademarks have been vigorously prosecuted by the NFL and the NCAA, respectively.  The US Olympic committee has gone one better, getting specific statutory protections in the US for the use of the term the Olympics and the interlocking rings that symbolize the games.  Sponsors of these events pay big bucks for the privilege of being associated with the events, and the organizations putting on the events rely on the money from these sponsors to fund their operations.  So they go out of their way to protect their trademarks.  I wrote the summer before last about my own experiences at the London Summer Olympics, where even the trademarks on the plumbing fixtures at the Olympic sites were obscured where the manufacturers had not obtained Olympics sponsorships.  So there are obviously limits on what can and cannot be said about these marks.  What are those limits? Continue Reading Super Bowl, the Olympics and March Madness – Watch Your Advertising and Promotions for Unauthorized Uses of Trademarked Phrases

Getting legal education from a fake news program is always dangerous, but a recent episode of the Stephen Colbert Show, here, nicely demonstrated trademark law.  The clip illustrates what we have written before, that the term "Olympics", like "Super Bowl" and "March Madness" are trademarked, and attempts to use them in commercials or promotions, or to otherwise imply that a product or program is associated with one of these events, can lead a broadcaster into legal trouble and potential liability.  The Colbert program shows Stephen discussing with his brother, a trademark lawyer, Stephen’s ideas for associating his program with the Olympics and, when his brother consistently rejects the plans, Colbert tries to change the 5 ringed Olympic symbol to five interlocking triangles, and other symbols that are similar, and Colbert is told that each is likely to bring a lawsuit.  Only when Colbert abandons the Olympic name, and the symbols, and comes up with a name – The Quadrennial Cold Weather Athletic Competition – that is the equivalent to the "Big Game" that many use when referencing the Super Bowl, was the brother satisfied that Colbert would not get successfully sued.  Stations should take similar precautions when thinking about using these terms in their programs.

Using the trademarked word or phrase in news reports about the event, or in other commentary, is in many cases just fine.  But trying to imply an endorsement or connection to the event for which true sponsors pay "big bucks", can get you into trouble, as explained by Mr. Colbert.  Thus, just as we looked to Colbert for examples of how music licensing works, and on when a candidate becomes legally qualified, he illustrated another legal concept.  When will we next look to Mr. Colbert for an explanation of the law?  Stay tuned.

With the Super Bowl and the Winter Olympics less than 2 weeks away, and March Madness not far behind, we once again need to remind our readers that all three are trademarked terms, meaning that their use, particularly for commercial purposes, is limited.  We’ve wrote here last year about the use of the term "Super Bowl" in commercials, and about the use of "Olympics" two years ago (here).  Our warning then bears repeating now – the trademarked terms should not be used in commercial messages except by authorized advertisers.  These advertisers have paid big bucks to be able to say that they are an Olympic sponsor, or that they are having a Super Bowl sale.  The holders of these trademarks enforce them rigorously (so that they can get the big bucks from the official advertisers), so don’t risk their use without official permission.  See our Super Bowl post from last year for details on how to refer to these events without running afoul of trademark limitations.

As we wrote last year, this does not prevent all use of these terms.  News reports about the events can still be given.  DJs can still chat about who is going to win the Super Bowl, or about the latest judging controversy in Ice Dancing at the Winter Olympics.  But don’t try to commercially exploit these terms (e.g. saying that you are "Springfield’s March Madness station") unless you have really paid for the rights to use the trademarked term.  Be careful, as a cute promotional idea can end up costing your station far more than you intended. 

Continue Reading Remember “Super Bowl”, the “Olympics” and “March Madness” Are Trademarked Terms – Don’t Use Them In Advertising Without Permission

Last week, an article in the Wall Street Journal focused on the enforcement of the trademark that the United States Olympic Committee has in the word "Olympics."  Thus, anyone who wants to call some sort of competition an "Olympic" contest, or anyone who uses any derivation of that word, is asking for potential issues should the USOC get word of that use.  What the article did not address was the issue that this raises for broadcasters and advertisers.  Just as the trademarked term "Super Bowl" can cause problems for companies that use it in advertisements without permission of the NFL, advertisers should refrain from the use of the term Olympics in connection with promoting their products.   Companies have paid huge rights fees to get the exclusive rights to use the Olympics in their advertising campaigns, usually getting exclusive rights in a particular product category.  These companies and the Olympic committee do not like to see local advertisers appropriating the use of the Olympics name (or the interlocking circles that comprise their symbol) in someone else’s ad.  So, just as electronic stores promote the sale of their big screen TVs before the Super Bowl by talking about the "Big Game" rather than using the trademarked phrase, advertisers must use care and avoid any trademark infringement by trying to tie their products to the Olympics during this upcoming event. 

Yesterday, I wrote about the history of the NCAA’s assembling of the rights to an array of trademarks associated with this month’s college basketball tournaments.  Today, I will provide some examples of the activities that can bring unwanted NCAA attention to your promotions or advertising, as well as an increasingly important development that should be considered when considering whether to accept advertising.

Activities that May Result in a Demand Letter from the NCAA

The NCAA acknowledges that media entities can sell advertising that accompanies the entity’s coverage of the NCAA championships.  However, similar to my discussion in January on the use of Super Bowl trademarks (see here) and my 2024 discussion on the use of Olympics trademarks (see here), unless authorized by the NCAA, any of the following activities may result in a cease and desist demand:

  • accepting advertising that refers to the NCAA®, the NCAA Basketball Tournament, March Madness®, The Big Dance®, Final Four®, Elite Eight® or any other NCAA trademark or logo.  (The NCAA has posted a list of its trademarks here.)
    • Example: An ad from a retailer with the headline, “Buy A New Big Screen TV in Time to Watch March Madness.”  Presumably, to avoid this issue, some advertisers have used “The Big Game” or “It’s Tournament Time!”
  • local programming that uses any NCAA trademark as part of its name.
    • Example: A locally produced program previewing the tournament called “The Big Dance: Pick a Winning Bracket.”
  • selling the right to sponsor the overall coverage by a broadcaster, website or print publication of the tournament.
    • Example: During the sports segment of the local news, introducing the section of the report on tournament developments as “March Madness, brought to you by [name of advertiser].”
  • sweepstakes or giveaways that include any NCAA trademark in its name. (see here)
    • Example: “The Final Four Giveaway.”
  • sweepstakes or giveaways that offer tickets to a tournament game as a prize.
    • Example: even if the sweepstakes name is not a problem, offering game tickets as a prize will raise an objection by the NCAA due to language on the tickets prohibiting their use for such purposes.
  • events or parties that use any NCAA trademark to attract guests.
    • Example: a radio station sponsors a happy hour where fans can watch a tournament game, with any NCAA marks that are prominently placed on signage.
  • advertising that wishes or congratulates a team, or its coach or players, on success in the tournament.
    • Example: “[Advertiser name] wishes [Name of Coach] and the 2022 [Name of Team] success in the NCAA tournament!”

There is a common pitfall that is unique to the NCAA, namely, basketball: tournament brackets used by advertisers, in newspapers or other media, or office pools where participants predict the winners of each game in advance of the tournament.  The NCAA’s position (see here) is that the unauthorized placement of advertising within an NCAA bracket and corporate sponsorship of a tournament bracket is misleading and constitutes an infringement of its intellectual property rights.   Accordingly, it says that any advertising should be outside of the bracket space and should clearly indicate that the advertiser or its goods or services are not sponsored by, approved by, or otherwise associated with the NCAA or its championship tournament.

It should be noted that the NCAA also imposes strict rules about the authorized uses of its trademarks.  The NCAA’s most recent Advertising and Promotional Guidelines for authorized use of its marks are posted online (see here).

Again, importantly, none of these restrictions prevents media companies from using any of the marks in providing customary news coverage of or commentary on the tournament. Trademark law allows you to make references to trademarked terms in news or informational programming where you convey information about those trademarked activities.  But these references should not imply any association between the station (or any sponsor who does not in fact have the rights to state that they are a sponsor) and the NCAA or the tournament (e.g., don’t say that you are the March Madness station in Anytown unless you in fact have the rights from the NCAA to say that). 

Continue Reading The More Things Change, the More They Remain the Same:  Risks of Using or Accepting or Engaging in Advertising or Promotions that Use FINAL FOUR or Other NCAA Trademarks:  2025 Update – Part II

Here are some of the regulatory developments of significance to broadcasters from this past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released a Notice of Proposed Rulemaking proposing that broadcasters and cable operators make on-air disclosures regarding the use of AI-generated content in political advertisements, and upload notices to their Online Public Inspection Files regarding such disclosures.  Comments and reply comments on the NPRM will be due 30 and 45 days, respectively, after the NPRM’s publication in the Federal Register.  Since the NPRM’s comment cycle will run through at least September, it is unlikely that any new disclosure requirement or new OPIF reporting obligation will be effective before the November election. We plan to provide more details about this NPRM on our Broadcast Law Blog this coming week. 
  • Contrary to earlier reports, the August 15 effective date for broadcasters’ expanded foreign government sponsorship certifications apparently does not apply to issue ads and paid PSAs.  As we discussed here, in a June Second Report and Order, the FCC expanded broadcasters’ existing obligations to verify whether lessees of program time are foreign governments or their agents (who have enhanced sponsorship identification requirements) to include an additional verification requirement for sponsors of issue ads and paid PSAs (but not sponsors of ads promoting a commercial product or service or ads from a political candidate or their authorized campaign committee).  It now appears that the FCC considers the rule’s expansion to issue ads and paid PSAs to require approval from the Office of Management and Budget before becoming effective.  OMB approval will take at least several months, so it appears that stations do not need to implement this verification obligation just as we are entering into the heart of election season.  For more information on the delay in the implementation of this requirement, see our article posted Friday on our Broadcast Law Blog.
  • A US District Court in Pennsylvania issued an order refusing to stay the effect of the FTC adoption of a rule banning non-compete agreements for all employees in the United States.  The Court found that the FTC’s order was not likely to be overturned after the Court’s final review, a decision contrary to that reached by a US District Court in Texas (in one of several cases challenging the FTC’s Non-Compete Rule) which did grant a preliminary injunction to the parties appearing before that Court.  The Texas Court promised to decide on whether to institute a wider ban by the end of August, before the September 4 effective date of the FTC rule.  Expect further litigation to reconcile these conflicting decisions.
  • The FCC’s Enforcement Bureau issued a Notice of Illegal Pirate Radio Broadcasting to an Oregon landowner for allegedly allowing a pirate to broadcast from its property.  The Bureau warned the landowner that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowner continues to permit pirate radio broadcasting from its property after receiving this notice. 
  • The FCC’s Media Bureau granted the substitution of UHF channel 33 for VHF channel 13 at Jacksonville, Florida.  The Bureau also found that the change would not result in the loss of the NBC service provided by this station as NBC service is provided in the loss area created by the channel change (which proposes a reduction in the number of viewers in the station’s service area) by other stations affiliated with the network.  This permission to change from a VHF to UHF channel serves as another example of the FCC’s recognition of the superiority of UHF channels for the transmission of digital TV signals.
  • The Media Bureau proposed two $6,500 fines against Tennessee and Mississippi FM translator operators for failing to timely file their license renewal applications and operating without authorization after their licenses had expired.  The Tennessee translator’s renewal was filed in February 2024 – almost four years after its April 1, 2020 deadline, and after its license expired on August 1, 2020.  The Mississippi translator’s renewal was filed in April 2024 – over four years after its February 3, 2020 deadline, and after its licensed expired on June 1, 2020.  The Bureau reduced the proposed fines from the $13,000 base fine due to the secondary nature of FM translators. 
  • The Bureau also took two actions dealing with potential dismissals of applications for construction permits for new LPFM stations:
    • The Bureau reinstated an Iowa LPFM construction permit application, which the Bureau dismissed in January 2024 for failing to meet the minimum distance separation requirements necessary to protect a nearby co-channel vacant allotment.  The applicant requested reinstatement of its application and an opportunity to amend, arguing that the FCC’s LPFM application rules do not prohibit curative amendments for failing comply with the minimum distance separation requirements for vacant allotments.  The Bureau agreed, finding that the prohibition on curative amendment applied only to spacing issues to applications and facilities existing as of July 31, 2023 (the date of the LPFM filing window procedures Public Notice). 
    • The Bureau granted another Iowa LPFM construction permit application over an objection claiming that the application should be dismissed because its signatory did not have authority to sign the application (as an officer) and failed to include a pledge to divest a commonly owned LPFM station.  The Bureau rejected the objector’s arguments, finding that the divestiture pledge was included in the technical exhibit to the application (as opposed to a separate exhibit) and although the application did not identify the signatory as an officer of the applicant, the Iowa Secretary of State’s website showed that the signatory was a director of the applicant at the time the application was filed, and prior FCC precedent allows a director of a non-profit applicant to sign on its behalf. 

On our Broadcast Law Blog, we provided guidance for broadcasters on accepting advertising or conducting promotions that directly or indirectly allude to the 2024 Paris Olympics – including a discussion of the enhanced legal protections that the U.S. Olympic and Paralympic Committee has from trademark infringement.