Nairobi Treaty on the Protection of the Olympic Symbol
All States party to the Nairobi Treaty are under the obligation to protect the Olympic symbol – five interlaced rings – against use for commercial purposes (in advertisements, on goods, as a mark, etc.) without the authorization of the International Olympic Committee.
Summary of the Nairobi Treaty on the Protection of the Olympic Symbol (1981)
All States party to the Nairobi Treaty are under the obligation to protect the Olympic symbol – five interlaced rings – against use for commercial purposes (in advertisements, on goods, as a mark, etc.) without the authorization of the International Olympic Committee.
An important effect of the Treaty is that, if the International Olympic Committee grants authorization to use the Olympic symbol in a State party to the Treaty, the National Olympic Committee of that State is entitled to a part in any revenue the International Olympic Committee obtains for granting the said authorization.
The Treaty does not provide for the institution of a Union, governing body or budget.
The Treaty is open to any State member of WIPO, the Paris Convention for the Protection of Industrial Property (1883), the United Nations or any of the specialized agencies brought into relationship with the United Nations. Instruments of ratification, acceptance, approval or accession must be deposited with the Director General of WIPO.
Nairobi Treaty
on the Protection of the Olympic Symbol
adopted at Nairobi on September 26, 1981
TABLE OF CONTENTS1
| CHAPTER I: Substantive Provisions | |
| Article 1: Obligation of States | |
| Article 2: Exceptions to the Obligation | |
| Article 3: Suspension of the Obligation | |
| CHAPTER II: Groupings of States | |
| Article 4: Exceptions to Chapter I | |
| CHAPTER III: Final Clauses | |
| Article 5: Becoming Party to the Treaty | |
| Article 6: Entry Into Force of the Treaty | |
| Article 7: Denunciation of the Treaty | |
| Article 8: Signature and Languages of the Treaty | |
| Article 9: Deposit of the Treaty; Transmittal of Copies; Registration of the Treaty | |
| Article 10: Notifications | |
| Annex | |
Any State party to this Treaty shall be obliged, subject to Articles 2 and 3, to refuse or to invalidate the registration as a mark and to prohibit by appropriate measures the use, as a mark or other sign, for commercial purposes, of any sign consisting of or containing the Olympic symbol, as defined in the Charter of the International Olympic Committee, except with the authorization of the International Olympic Committee. The said definition and the graphic representation of the said symbol are reproduced in the Annex.
(1) The obligation provided for in Article 1 shall not bind any State party to this Treaty in respect of:
(i) any mark consisting of or containing the Olympic symbol where that mark was registered in that State prior to the date on which this Treaty enters into force in respect of that State or during any period during which, in that State, the obligation provided for in Article 1 is considered as suspended under Article 3;
(ii) the continued use for commercial purposes of any mark or other sign, consisting of or containing the Olympic symbol, in that State by any person or enterprise who or which has lawfully started such use in the said State prior to the date on which this Treaty enters into force in respect of that State or during any period during which, in that State, the obligation provided for in Article 1 is considered as suspended under Article 3.
(2) The provisions of paragraph (1)(i) shall apply also in respect of marks whose registration has effect in the State by virtue of a registration under a treaty which the said State is a party to.
(3) Use with the authorization of the person or enterprise referred to in paragraph (1)(ii) shall be considered, for the purposes of the said paragraph, as use by the said person or enterprise.
(4) No State party to this Treaty shall be obliged to prohibit the use of the Olympic symbol where that symbol is used in the mass media for the purposes of information on the Olympic movement or its activities.
The obligation provided for in Article 1 may be considered as suspended by any State party to this Treaty during any period during which there is no agreement in force between the International Olympic Committee and the National Olympic Committee of the said State concerning the conditions under which the International Olympic Committee will grant authorizations for the use of the Olympic symbol in that State and concerning the part of the said National Olympic Committee in any revenue that the International Olympic Committee obtains for granting the said authorizations.
The provisions of Chapter I shall, as regards States party to this Treaty which are members of a customs union, a free trade area, any other economic grouping or any other regional or subregional grouping, be without prejudice to their commitments under the instrument establishing such union, area or other grouping, in particular as regards the provisions of such instrument governing the free movement of goods or services.
(1) Any State member of the World Intellectual Property Organization (hereinafter referred to as “the Organization”) or of the International (Paris) Union for the Protection of Industrial Property (hereinafter referred to as “the Paris Union”) may become party to this Treaty by:
(2) Any State not referred to in paragraph (1) which is a member of the United Nations or any of the Specialized Agencies brought into relationship with the United Nations may become party to this Treaty by deposit of an instrument of accession.
(3) instruments of ratification, acceptance, approval and accession shall be deposited with the Director General of the Organization (hereinafter referred to as “the Director General”).
(1) With respect to the three States which are the first to deposit their instruments of ratification, acceptance, approval or accession, this Treaty shall enter into force one month after the day on which the third instrument of ratification, acceptance, approval or accession has been deposited.
(2) With respect to any other State which deposits its instrument of ratification, acceptance, approval or accession, this Treaty shall enter into force one month after the day on which that instrument has been deposited.
(2) Denunciation shall take effect one year after the day on which the Director General has received the notification.
(1) This Treaty shall be signed in a single original in the English, French, Russian and Spanish languages, all texts being equally authentic.
(2) Official texts shall be established by the Director General, after consultation with the interested Governments, in the Arabic, German, Italian and Portuguese languages, and such other languages as the Conference of the Organization or the Assembly of the Paris Union may designate.
(3) This Treaty shall remain open for signature at Nairobi until December 31, 1982, and thereafter at Geneva until June 30, 1983.
(1) The original of this Treaty, when no longer open for signature at Nairobi, shall be deposited with the Director General.
(2) The Director General shall transmit two copies, certified by him, of this Treaty to all the States referred to in Article 5(1) and (2) and, on request, to any other State.
The Director General shall notify the States referred to in Article 5(1) and (2) of:
(i) signatures under Article 8;
(ii) deposits of instruments of ratification, acceptance, approval or accession under Article 5(3);
(iii) the date of the entry into force of this Treaty under Article 6(1);
(iv) any denunciation notified under Article 7.
The Olympic symbol consists of five interlaced rings: blue, yellow, black, green and red, arranged in that order from left to right. It consists of the Olympic rings alone, whether delineated in a single color or in different colors.
1 This Table of Contents is added for the convenience of the reader. It does not appear in the signed text of the Treaty.
Nairobi Notification No. 1
Nairobi Treaty on the Protection of the Olympic Symbol
Signatory States
The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs and has the honor to notify him that, as of the date of the present Notification, the following States have signed the Nairobi Treaty on the Protection of the Olympic Symbol, adopted at Nairobi on September 26, 1981:
- Argentina, Austria, Chile, Congo, Ghana, Greece, Hungary, Indonesia, Israel, Ivory Coast, Kenya, Mexico, Poland, Portugal, Romania, Senegal, Soviet Union, Spain, Sri Lanka, Switzerland, Trinidad and Tobago
(Total: 21 States)
(Total: 21 States)
In accordance with Article 8(3) of the said Nairobi Treaty, the Treaty remains open for signature at Nairobi (at the Ministry of Foreign Affairs of the Republic of Kenya) until December 31, 1982, and thereafter at Geneva (at the Headquarters of WIPO) until June 30, 1983.
Pursuant to the provisions of Article 5(1) of the said Nairobi Treaty, any State member of WIPO or of the International (Paris) Union for the Protection of Industrial Property may become party to the said Nairobi Treaty by signature followed by the deposit of an instrument of ratification, acceptance or approval, or by deposit of an instrument of accession. Pursuant to Article 5(2) of the said Nairobi Treaty, any State not member of WIPO or of the Paris Union which is a member of the United Nations or any of the Specialized Agencies brought into relationship with the United Nations may become party to the said Nairobi Treaty by deposit of an instrument of accession.
Instruments of ratification, acceptance, approval or accession must be deposited with the Director General of WIPO.
The date of entry into force of the said Nairobi Treaty will be notified when the required number of ratifications, acceptances, approvals or accessions is reached in accordance with Article 6(1) of the said Nairobi Treaty.
December 3, 1981
Introduction
Olympic is the largest sporting event in the world, which features both summer and winter sports. Currently XXIII Olympic Winter Games are going on in the capital of Republic of Korea. Thousands of players and their supporters come from across the globe. South Korea is expected to spend $ 13 billion in organizing the 2018 winter Olympic[1]. Historically, to get sponsorship for organizing the Olympic games, the hosting country uses the Olympic symbol, flag, motto and anthem, transfers all the rights related to these elements to the sponsors. The intellectual property(IP) system plays an important role in safeguarding the unique character of the Olympic Games. In Olympics games, the act of ambush marketing has been an increasing phenomenon which is a serious concern for the hosting countries. This article will highlight the IP aspects of the Olympic games.
Intellectual Properties in Olympic
Usually, motto, logo, anthem and emblems are seen as Olympic properties but in practice it is more than that. It encompasses all rights relating to the Olympic Games in relation to advertisement, organization, telecast, broadcast and marketing of the event. The Olympic properties qualify for IP protection under laws governing copyright, trademark and industrial designs, which together with patents, utility models and trade secrets make up the palette of IP assets that are relevant to the Olympic Games[2]. All the IP rights associated with the Olympic properties are exclusively owned by the International Olympic Committee (IOC), which provides support for organizing and hosting of Olympic.
Innovation in Olympic games
The 2018 Pyeon Chang Olympics is the latest example in which one can easily find the relation of invention and Olympics. In the 2018 PyeongChang Olympics, a torch was designed in such way that the flames will continue to burn in all weather conditions, and that will withstand the strong winds and heavy snowfall that can be expected in the Republic of Korea. This example shows the quality of innovation in the Olympic Games. Therefore, it is a duty of the hosting country to protect the rights of the innovator.
Challenges to the Protection of Olympic Intellectual Properties
The IOC places heavy emphasis on protecting intellectual properties rights associated with Olympics because financial success of the Games and the profit that Games themselves generate for corporate sponsors depends entirely upon the protection of the Olympic properties. These properties are threatened in several ways, including ambush marketing, trademark infringement, counterfeiting and cybersquatting. Ambush marketing and trademark infringement occur more often in the Olympic Games.
Ambush marketing – Ambush marketing occurs each time when a non-Olympic sponsor tries to portray itself as an official Olympic sponsor in an effort to “capitalize on the goodwill, reputation, and popularity” of the Olympics[3]. In 2016 Rio Olympic Games, there were many cases of ambush marketing like Nike and its ‘unlimited campaign’, social media posts, Ford videos etc. To tackle with the menace of ambush marketing, the hosting countries have started to enact special legislation. An anti-ambush marketing legislation was introduced for the first time in 2000 Sydney Olympic. Similar was the means used in the 2016 Rio Olympic where Brazil enacted special legislation called Olympic Act (Law 12,035/2009) to protect the interest of official sponsors from ambush marketing.
Trademark Infringement – The hosting country’s ability to raise money from sponsors, suppliers, advertising agencies and licensees is hindered by a mere possibility of trademark infringement. The IOC has taken numerous steps to prevent the trademark infringement. There are numerous lawsuits that have been filed by the IOC against trademark infringers i.e. lawsuit to restrain defendants from using term “Olympic” in an athletic competition[4] and trademark opposition suit against application of bakery to register mark “Olympic Kids” for use on its baking goods.[5]
International Treaty on the protection of the Olympic Symbol
The Nairobi Treaty on the Protection of the Olympic Symbol is one of the international treaties on IP administered by WIPO. Any state that has ratified the treaty is obliged to refuse or to invalidate the registration of a mark and to prohibit by appropriate measures the use of a mark or other signs, for commercial purposes, of any sign consisting of or containing the Olympic symbol, as defined in the Charter of the International Olympic Committee (IOC), except with the authorization of the IOC[6].
Conclusion
In the current world, the Olympic Games are a brand in itself and the protection of the Olympic properties is very important. The IOC has been trying to protect the Olympic properties with the help of international treaties and national legislations. However ordinary legal protection, such as trademark, copyright remains essentials. These laws are not sufficient in protecting the Olympic properties and like other trademark or copyright owners, IOC faces a number of challenges in managing its IP, particularly in relation to social media platforms. IOC and other bodies must therefore, ensure that the Olympic properties should be protected so that people of all ages and all continents can continue enjoy the mega event that Olympics are.
Author: Ajay Sharma, intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at swapnils@khuranaandkhurana.com.
References:
[1]https://www.npr.org/2018/02/02/582790412/south-korea-prepares-to-spend-13-billion-on-winter-olympics-is-it-worth-it (Last Updated on 26/02/2018)
[2]http://www.wipo.int/portal/en/news/2018/article_0002.html(Last Updated on 26/02/2018)
[3] Stephen M. McKelvey, Atlanta ’96: Olympic Countdown to Ambush Armageddon? 4 SETON HALL J. SPORT L. 397,401(1994)
[4] San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522 (1987)
[5] O.M. Bread, Inc, v. U.S. Olympic Comm, 65 F.3d 933(Fed, Cir. 1995)
[6]http://www.wipo.int/ip-sport/en/olympic.html(Last updated on 26/02/2018)
One of the most interesting WIPO (World Intellectual Property Organization)-administered treaties on the protection of a specific trademark/copyright is the Nairobi Treaty on the Protection of the Olympic Symbol (1981); commonly referred to as the Nairobi Treaty. With 52 contracting nations, the primary objective of this treaty is to protect the Olympic symbol (the five interlaced rings) without the authorization of the International Olympic Committee.
It should be noted that this treaty does not provide for the institution of a Union, governing body or budget. An important effect of this treaty is that the signatory state is entitled to a part in revenue that the International Olympic Committee gains from authorizing the respective state to utilize the Olympic symbol.
This treaty is open to all countries that maintain a membership in the WIPO along with signatories of the Paris Convention for the Protection of Industrial Property (1883), and the United Nations or any of the specialized agencies brought into relationship with the United Nations. The process of ratification, acceptance, approval or accession will be handled by the office of the Director General of WIPO.