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2021

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07

Lawyer from Legal Shengbang said | Lai Wenyang: "Touching the Olympic Hot Spots"? Be careful of infringement!

Recently, the author has also received inquiries from many perennial legal advisory units regarding whether the relevant activity plans for rubbing against Olympic hotspots are compliant.


1、 Background Summary:

 

The Tokyo Olympic Games opened today, but recently, its various "slots" are everywhere on major media platforms such as microblog hot search and Tiktok: such as paper beds that "care for health and keep in shape" (see figure 1), "beautiful faces" (see figure 2), and green calling for "Olympic dolls" (see figure 3), There are also athletes from a certain country who, upon arriving in the Rainbow Country, find it difficult to live in China and flee to work (see Figure 4), as well as the psychedelic act of dismissing the chief director the day before the opening ceremony of the Olympics. The Tokyo Olympics, which occasionally catches the headlines, seems like bringing the topic of the Olympics can generate a huge amount of traffic and attention.

 

Recently, the author has also received inquiries from many perennial legal advisory units regarding whether the relevant activity plans for rubbing against Olympic hotspots are compliant. In the upcoming Olympic Games, it is necessary to understand relevant management regulations and regulatory status in order to avoid companies using "Olympic hotspots" for brand promotion but accidentally causing infringement. In fact, the supervision and management of Olympic logos are not only restricted by the Olympic Charter of the Olympic Organizing Committee abroad, but also by the "Regulations on the Protection of Olympic Symbols" (hereinafter referred to as the "Regulations") issued by the State Council in China, which provide detailed and strict regulations on the use of Olympic related logos, text, photos, etc. If these rules are not understood or ignored, there may be losses due to infringement.

 

2、 What is "Olympic logo infringement"?

 

(1) Legal provisions

 

1. What are the Olympic symbols?

According to Article 2 of the Regulations on the Protection of the Olympic Symbols, the Olympic Symbols referred to in these Regulations refer to:

 

(1) The Olympic Five Rings emblem, Olympic flag, Olympic motto, Olympic emblem, and Olympic anthem of the International Olympic Committee;

(2) Exclusive names such as the Olympics, Olympia, Olympic Games, and their abbreviations;

(3) The name, emblem, and emblem of the Chinese Olympic Committee;

(4) The name, emblem, and emblem of the organization applying to host the Olympic Games within China;

(5) The name and abbreviation, mascot, anthem, torch shape, slogan, "host city name+year of hosting" and other symbols of the Olympic Games held within China, as well as the name and emblem of its organizational structure;

(6) Other symbols related to the Olympic Games held within China as stipulated in the Olympic Charter and the relevant contract of the host city of the Olympic Games.

 

In short, all text, emblem, emblem, motto, anthem, etc. related to the Olympics belong to the owner of the Olympic emblem rights, and are not allowed to be used commercially without permission.

 

2. What is used for commercial purposes?

According to Article 4 and Article 5 of the Regulations on the Protection of the Olympic Symbols, the rights holders of the Olympic Symbols shall have exclusive rights to the Olympic Symbols in accordance with these Regulations. Without the permission of the owner of the Olympic Symbols, no one is allowed to use the Olympic Symbols for commercial purposes.

 

Commercial use refers to the use of the Olympic emblem for profit in the following ways:

 

(1) Using the Olympic emblem on goods, packaging or containers, and trade documents;

(2) Using the Olympic emblem in service projects;

(3) Using the Olympic emblem in advertising, commercial exhibitions, commercial performances, and other commercial activities;

(4) Selling, importing, and exporting goods containing the Olympic emblem;

(5) Manufacturing or selling the Olympic emblem;

(6) Other behaviors that utilize the Olympic emblem for profit.

 

Article 6 of the Regulations on the Protection of the Olympic Symbols further stipulates that if activities are carried out using elements related to the Olympic movement, which is sufficient to mislead people into believing that there is a sponsorship or other supporting relationship with the owner of the Olympic symbol, and constitutes an unfair competition behavior, it shall be dealt with in accordance with the Anti Unfair Competition Law of the People's Republic of China.

 

(2) Common Infringement Situations

 

1. Printing the Olympic logo on its products without permission;

2. Unauthorized use of Olympic limited edition or specific edition products;

3. Unauthorized advertising of relevant brands or products as designated Olympic products or brands;

4. Without permission, expressing "XXX cheers for Chinese Olympic athletes" in product exhibitions or advertisements;

5. Initiate Olympic result guessing activities in computer software or mobile apps without permission;

6. Unlicensed advertising related to the Olympic Games on the company's official microblog, WeChat official account, Tiktok and other platforms.

 

Whether it is traditional manufacturing or rapidly developing internet e-commerce, gaming and other fields, there is a possibility of accidentally stepping on lightning. For example, when promoting a product in live streaming without permission, calling it a partner of an Olympic delegation, launching games related to the Olympics without permission, and so on.

 

3、 Punishment Cases

 

Case 1: In the official WeChat of the company, the public claimed: "XXXX becomes the partner of the Chinese Torch bearer delegation for the 2020 Tokyo Olympic Games" (Beijing Changping District Market Supervision Administration Administrative Penalty Decision No. (2020) 237)

 

On March 23, 2020, the Beijing Organizing Committee for the Winter Olympics reported to the Changping District Market Supervision and Administration Bureau of Beijing that the perpetrator used the Olympic emblem for commercial purposes without the permission of the Olympic emblem owner, the Beijing Organizing Committee for the Winter Olympics, violating the exclusive rights of the Olympic emblem.

 

After investigation, the perpetrator used the company's official WeChat official account on March 20, 2020 to release information that "Siji Muge became the partner of the Chinese torch bearer delegation for the 2020 Tokyo Olympic Games", and in many places in the promotional posters, the proper terms such as "Olympic Games" and "Tokyo Olympic Games" were used, and in many places, the logo such as "Olympic rings" was used.

 

The actor wants to promote and showcase their high-quality brand image to the world through the form of cooperation as an Olympic sponsor.

 

Although the perpetrator provided relevant authorization documents issued by China Olympic Torch Brand Operation Co., Ltd., after the Changping District Market Supervision and Administration Bureau requested assistance from the Beijing Winter Olympics Organizing Committee for investigation, it was determined that China Olympic Torch Brand Operation Co., Ltd. did not obtain its permission or have any re authorization qualifications.

 

After being questioned by the media and social media, the perpetrator proactively deleted all relevant articles and ceased their promotional activities on March 21, 2020. However, the above-mentioned behavior of the perpetrator violates the provisions of Article 4 (2) of the Regulations on the Protection of Olympic Symbols, falls under the circumstances of Article 5 (3), and constitutes an infringement of the exclusive rights of the Olympic Symbols. In accordance with the provisions of Article 12 (1) of the Regulations on the Protection of Olympic Symbols, the perpetrator is ordered to immediately stop the infringing behavior, and an administrative penalty decision is made as follows: a fine of 170000 RMB.

 

Case 2: Using the Olympic emblem for commercial purposes (including potential commercial purposes) without the permission of the Olympic rights holder (Administrative Penalty Decision Document No.: Lanshijian Penalty Zi [2020] No. 7084)

 

In August 2019, the perpetrator began selling basketball with the words "Official Partner of the Lesotho Olympic Committee and Designated Supplier of the Lesotho Olympic Delegation for the 2020 Tokyo Olympics" on their flagship store. In December 2019, the perpetrator began selling a No. 5 children's orange wear-resistant particle basketball with the above words printed on its flagship store.

 

On April 29, 2020, the Market Supervision Administration of Lanxi City received a complaint and report that the above-mentioned goods were not authorized by the International Olympic Committee and the Chinese Olympic Committee and were fraudulent to consumers. On May 7, 2020, law enforcement officers from the Lanxi Market Supervision Administration visited Zhejiang Lanwei Sports Goods Co., Ltd. and found that the company produced 240 basketballs with the words "Official Partner of the Lesotho Olympic Committee and Designated Supplier of the Lesotho Olympic Delegation for the 2020 Tokyo Olympics".

 

The perpetrator is unable to provide authorization materials from the International Olympic Committee and the Chinese Olympic Committee. The above products have been lawfully seized and fined 1778 yuan by the Market Supervision and Administration Bureau of Lanxi City.

 

4、 Penalty basis

 

Article 12 of the Regulations on the Protection of the Olympic Symbols stipulates that if an infringement is found to be committed, the market supervision and management department may order an immediate cessation of the infringement, confiscation and destruction of infringing goods and tools mainly used for the manufacture of infringing goods or the unauthorized manufacture of the Olympic symbols for commercial purposes. If the illegal operation amount exceeds 50000 yuan, a fine of less than 5 times the illegal operation amount may be imposed. If there is no illegal operation amount or the illegal operation amount is less than 50000 yuan, a fine of less than 250000 yuan may be imposed. If a crime is constituted, criminal responsibility shall be pursued in accordance with the law.

 

Article 15 of the Regulations on the Protection of the Olympic Symbols stipulates that the amount of compensation for infringement of the exclusive rights of the Olympic Symbols shall be determined based on the losses suffered by the right holder due to infringement or the benefits obtained by the infringer due to infringement, including reasonable expenses paid to stop the infringement; If the losses of the infringee or the benefits obtained by the infringer are difficult to determine, the reasonable determination shall be based on the licensing fee for the Olympic emblem.

 

After searching for administrative penalties in China, the author found that most of these administrative penalties occur in cities such as Beijing, Shanghai, Guangzhou, and Shenzhen; The punishment content is mostly for enterprises illegally using the Olympic concept or Olympic logo for advertising and marketing promotion; The punishment amount is relatively large, ranging from 10000 to hundreds of thousands, and the punishment intensity is relatively heavy. But this is only an administrative penalty. Assuming that the Tokyo Organizing Committee of the Olympic Games establishes a "gift hotspot infringement group" to file infringement claims against these suspected Chinese enterprises, the compensation amount faced will be even greater!

 

In summary, lawyers advise everyone to avoid the hot topics of the Olympics as much as possible and focus on improving products and services. If you really want to get involved in hot topics but cannot obtain permission from the Olympic Organizing Committee, it is necessary to ask a professional legal team to establish a compliance system, review the advertising content such as the promotional copy before advertising, and minimize the risk of infringement.

 

At the end of the article, I will bring the license fee table of the Olympic Organizing Committee, which is jokingly referred to as "giving money" by netizens, for reference only.