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

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...