Member Article

It is not unusual for companies to choose famous and prestigious events, such as entertainment awards and sporting championships, as platforms to promote their products and services. The Olympic Games are no different. As the world´s most important sporting event, drawing the attention from individuals all over the world for more than two weeks, the Olympic Games are the perfect scenario for marketing actions.

A company´s right to display its trademark in relation to the Olympic Games is granted by sponsorship and partnership agreements. With this in mind, it is worth mentioning the most common models of sponsorship: (i) Worldwide Olympic Partners, such as GE, Samsung, Panasonic, and Coca-Cola; and (ii) Official sponsors of the Rio 2016 Olympic Games, such as Embratel, Bradesco, and Claro. There are also the Official Rio 2016 supporters, and, of course, the athletes and national teams sponsors1.

Certainly, all of these companies intend to associate their trademarks with this great sporting event, considering the massive media exposure. A few examples of such association are: the broadcasting of advertising campaigns before and after the Olympic Games, the displaying of sponsors’ trademarks in privileged locations at the Olympic Games and the disclosure of all types of media associating a trademark to a specific performance at the event.

The above-mentioned practice is perfectly acceptable and widely disseminated. Nevertheless, some companies that are not official sponsors or supporters of the event wish to associate their trademarks with the Olympic Games. This often results in companies associating their trademarks with the Olympic Games illegally. Such practice, known as ambush marketing, infringes not only the exclusive advertising rights granted to the sponsors, but also the trademark rights over the protected Olympic Trademarks.

The Olympic Charter2, which stands for specific provisions for trademark protection, has an entire section discouraging the practice of ambush marketing. According to the document, any attempt to create an untrue and unauthorized relation between the official Olympic Games trademarks and other trademarks with commercial purposes is expressly forbidden.
In fact, taking advantage of a prestigious event to promote a company’s name or trademark is considered a commercially opportunistic practice, which is disapproved by Brazilian and International Law. The Brazilian Counsel of Advertising Self-regulation (CONAR) also expressly discourages ambush-marketing practices.

Trademarks are protected by the Brazilian Industrial Property Law (Federal Law n°9.279/96), Lei Pelé (Law n° 9.615), and the Nairobi Treaty on the Protection of the Olympic Symbol3, which prohibits the commercial use of the Olympic Symbol (the five Olympic rings) without previous authorization from the International Olympic Committee.

Also, the Brazilian Olympic Act was recently amended by Federal Law n°13.284/2016, and in its newest version4, establishes penalties for the practice of ambush marketing in the modalities of association, which consists of unauthorized marketing activities that associate advertisers with the Olympics. Another type of ambush marketing subject to penalties is the marketing by intrusion, which is the unauthorized marketing activities that promote advertisers at the official Olympic sites, both mentioned above. The trademarks protected by this law include those owned by the responsible entities, such as the Olympic Symbol and the Event´s Official names, and the penalties may be from three-months up to one-year detention, or the payment of a fine.

The first Olympic Games hosted in South America are expected to have a direct and indirect impact on 90% of the Brazilian population. Individuals from nearly 200 countries and territories will be closely watching the games and keeping up with the latest sporting news. For this reason, the surveillance of ambush marketing practice is a concern, in order to ensure that the marketing and advertising involving the Olympic Games are “fair played" and do not infringe any intellectual property rights.