The Five Ring Event that dare not speak its name
In a few days, the London Olympics will begin, and while some of us will likely take to Twitter to express our disdain for Gary Lineker’s commentary, around the Olympic site IP police will take to the streets worried less about ensuring the Olympics “inspiring a generation” and more about protecting the exclusivity rights of the Olympics’ corporate sponsors. The Internet’s social networking sites will be full of tweets, photos, news, and blogs of the very best and worst of London. Yet, for the last couple of months and for the next three weeks private industries will attempt to control a small geographical location in our country with IP police without any legal standing to do so.
The last two weeks of Olympic news has focused on the G4S staff shortages debacle which has led to the security of the Olympics being handed over to the British Army. Yet it is quite telling that 300 “personnel” were able to be located, trained and dispatched around the country to make sure that companies not associated with the Games are not using protected words – like ‘summer’ and ‘London’. This has led to the UK adopting a temporary IP policy that sees our country’s butchers threatened with fines up to £20,000 and prison sentences for displaying sausages exploiting the Olympic logo. Trademark law has been used (despite objections from the government) to ban bakers from icing cakes with Olympic rings. You can probably go to the Games wearing Nike trainers, says Lord Coe, but you can’t wear a Pepsi shirt.
Fair enough, you might say. These are all legitimate steps necessary to protect the Olympic brand from dilution and whether we like it or not, these corporate sponsors fund the Games. Tell that to Stephen Cheesman, who was left severely brain damaged after a mortar attack in Afghanistan. His mum was selected as an Olympic torch bearer, but banned from wearing a Help for Heroes wristband or 81 year old Joy Tomkins, a charity knitting group fundraiser that was banned from selling £1 doll because ‘GB 2012’ logo breaches Olympic copyright laws.
The Olympics, its corporate backers, and its official international organizing committees are IP maximalists. As you read this, the USOC is fighting a fierce battle at ICANN (the organization tasked with ensuring the function of the addressing system for the entire Internet) to secure special protection for .olympic domains and its variations. To Brits this sounds like a no-brainer, but ask any Greek whether or not they should be able to claim the rights over a Greek word with historical significance to that country’s history. Recently the Olympic Committee forced a restaurant called Olympic Gyro — which has been called that for 30 years to changes its name. What the Olympics are demanding from ICANN is global exclusive licensing rights. What they are getting from LOCOG are guarantees of enforcement of these rights. Yet, there are already mechanisms in place that provide ample opportunity for these groups to protect any legitimate rights. What they want is something more – the British taxpayer to fund the enforcement.
Copyright and trademarks lawyers can struggle sometimes when determining whether or not their clients’ IP rights are being infringed, and seek judicial intervention to settle the disputes. They are often wrong. If a rights holder cannot determine whether something is infringing, then how can they expect 300 poorly trained temporary workers to do so fairly? Where is the judicial oversight that normally exists in trademark disputes?
Prejudging trademark and copyright infringement by entities that are not formally part of the public judicial/court system constitutes an inappropriate delegation of active pre-emptive legal authority to non-judicial, non-independent decision-makers. Furthermore, this seriously undermines legal accountability. If capture of public governance by elite powers for narrow interests is a bad thing when it happens with an elected government, it is far worse in the context of a quasi-autonomous and authoritative non-governmental organization like the Olympic Committee with far less direct structural accountability to a strong, effective independent judiciary.
The great irony of this Olympics will be while IP police shut down illegal chip stands within the Olympic village (McDonalds owns the rights to sell chips at London 2012), around the country young athletes will be copying the poses of Usain Bolt, imitating the stroke of Michael Phelps, and taking up sport hoping to duplicate the success of the current crop of athletes on the field, in the pool, and at velodromes around the country.
For students of IP or Internet law, history may regard 2012 as the year the world finally woke up to the excesses of copyright maximalism. Olympic IP lawyers should have advised the IOC and LOCOG to embrace social media instead of insisting that the terms of conditions on Olympic tickets contained a “do not share” clause prohibiting one from uploading pictures and videos of the Olympic experience on websites like YouTube and Facebook. Furthermore, they should have advised corporate sponsors that, although their brand will be on display for the world to see, news about IP police enforcing your rights may bring a tidal wave of bad publicity.
I sincerely hope this Olympics will highlight in part the lunacy of excessive brand protection at the Olympics, and I hope anyone that has branded clothing removed takes to Twitter to report it. I suggest the ensuing backlash would end any brand protection at the Games. A friend and I jokingly contemplated travelling to the Olympic village to give away free chips – in packages that cost £2.99; therefore, circumventing the IP Police. As far as I can tell, no-one has the exclusive contract with LOCOG to sell cardboard chip containers.