“Olympic” marketing and what to consider when advertising major sporting events in Germany
With the Olympic Games in Tokyo taking place this summer, we must all brace ourselves for a torrent of “Olympic” advertising. In recent weeks, grocery stores, sports brands and other businesses have again been tempting consumers with “Olympic” discounts and prices. But is such marketing in line with competition law?
The Olympic Protection Act (Olympiaschutzgesetz) adds further hurdles to the admissibility of such advertising in Germany. The Act was passed in 2004 to safeguard the reputation of the Olympic Games from parties who would seek to exploit the Games’ “good name” and prestige. It prohibits third parties from using the Olympic designations in advertising where a likelihood of confusion exists or where the use of such names takes unfair advantage of the reputation of the Games. In a recent decision, the German Federal Supreme Court (docket number: I ZR 225/17) provided some guidance concerning the admissibility of “Olympic record-setting” and “Olympic level” sportswear. It determined that using such terms as product-related synonyms to demonstrate exceptionally good performance or value for money is not necessarily worthy of reprimand under the Olympic Protection Act. As part of everyday vocabulary, the Court determined, these terms do not cross the line to constituting an “unfair exploitation” of the Olympic image. They do not mislead the average consumer into believing that there are economic or contractual links between the International Olympic Committee and the advertiser.
The outlook for advertising parties in Germany is therefore not as bleak as many may have initially feared upon learning about cases being brought against “Olympic” advertisers. The German courts seem to be adopting an ever advertiser-friendly interpretation of the law. Danger of confusion is given, in particular where companies misrepresent themselves as official sponsors of the Olympics (in particular by using Olympic emblems) or where a close, concrete image‑transferring link to the Olympic Games is established (such as “Olympia care kit” or “Olympic contact lenses”).
To this end, it is necessary that the quality or values associated with the Olympic Games be transferred to the advertised goods or services. Merely attracting consumer attention by creating associations with the Games is generally not sufficient for an unfair image transfer.
This decision is not just noteworthy in relation to Olympic events, but could also have repercussions for other major sporting events. In light of this year’s European Football Championship and the FIFA World Cup in Qatar in 2022, we can once again anticipate the return of “world champion” products and “EM specials”. There is no Protection Act for these football events. Advertising seeking to hitch itself to the Football Championships must merely comply with the regular rules concerning unfair competition and trademark law. However, the interests of advertisers using major sporting events to promote their product are similar. The considerations brought forward by the Court in its “Olympic” jurisprudence might be applied to comparable scenarios in the world of football.
