The Olympics are coming! Now is a good time for brand owners who are planning promotional activities related to the Olympic games, or have endorsement agreements with Olympic athletes, to review the rules and make sure they are in compliance with advertising “dos and don’ts.”  Both the International Olympic Committee (“IOC”) and the U.S. Olympic Committee (“USOC”) have their own guidelines.  The USOC’s guidelines apply only to campaigns targeted to a United States audience, while brands will want to review the IOC’s guidelines for multinational marketing.

The IOC adopted Rule 40 (“Rule”) to control advertising by both official sponsors and others in an attempt to limit “ambush marketing.”  Ambush marketing refers to advertising campaigns during an event like the Olympics, that incorporate words or images that associate a brand with the event (For more information on ambush marketing see our article Fair Play, Trademarks And Sponsorships: How To Navigate The Olympics Season). Rule 40 applies during the “Games Period,” which will be July 18, 2024 to August 13, 2024. Rule 40 also applies to the Games Period of the Paralympic Games which is August 21, 2024 to September 10, 2024.  .However, there are aspects of the Rule that govern ads featuring a participant in the Games before and after the Games Period.

Rule 40

The Rule applies to competitors, team members, coaches, trainers, and officials who are participating in Paris 2024 (“Participants”).  The Rule does not apply to alumni of past Olympic games. 

The Rule applies to “Advertisements,” which are defined as: (1) all forms of commercial promotion, including social media and social network posts, as well as promotions by organizations or participants in commercial relationships with the organization (whether paid-for or not); and (2) traditional advertising in paid-for spaces, including press advertisements, billboards, television and radio advertisements, online advertising, direct advertising, personal relations (including personal appearances and press releases), lending or gifting of products to participants, on-product promotions, and in-store promotions such as point of sale displays. The Rule makes no distinction between nonprofit or for-profit organizations.

The Rule governs what official Olympic Partner Sponsors (“OP Sponsors”) can do in their ads.  For example, OP Sponsors can run ads with any Participant image, name or sports performance provided they obtain necessary consents to use those images from the Participants and comply with other IOC rules.  These OP Sponsors can also run Congratulatory Advertising, provided the ad doesn’t include a statement implying that the product or service enhanced the Participant’s performance and does not include a personal endorsement of the relevant product or service.

For those brands that are not OP Sponsors the Rule sets out what they can and cannot do around the Games provided they obtain permission from the USOC by completing the Personal Sponsor Commitment.  For example, unlike OP Sponsors, Non-OP Sponsors cannot use any of the “Olympic Properties”, which include the:

• Olympic symbols
• Paris 2024 emblem, mascots, pictograms, and Paris 2024 graphics
• Any National Olympic Committees emblem or emblem of a national Olympic team
• Words “Olympic”, “Olympics”, “Olympic Games”, “Olympiad”, and “Olympiads
• Name of the host city and the year of the Games (i.e. Paris 2024
• Any Olympic-related words and symbols registered as trademarks and/or protected by relevant legislation in the country of the National Olympic Committees (NOCs) that the participant represents or where the advertising is made availabl
• Names of the Olympic teams, such as “Equipe de France” or “Italia Team
• Olympic motto “Citius, Altius, Fortius – Communiter
• All firms, musical works, artistic works, and designs created by the IOC, the Paris 2024 Organising Committees for the Olympic Games or any NO
• Any other symbols, designs, works, words, or expression that are translations of, or which could be confused with ones listed above.

The Rule has been a source of tension between the IOC and Participants as it puts limitations on how athletes can capitalize on their own name, image, and likeness, which is often the only way these athletes can earn a living.  Over the years, the IOC has tried to relax or streamline the Rule in order to make it easier to understand and to follow.  The USOC’s interpretations of Rule 40 try to provide U.S. athletes with more flexibility to secure personal sponsorship to support their training and competition.

Generic Ads

With Rule 40 permission, brand owners can capitalize on a participant’s appearance at the Games even if they are not sponsors of the Games. Generic ads promote the sponsor’s brand, products or services and the only connection between the Games, USOC, the IOC, or Team USA is the fact the advertising uses an athlete’s image. However, these ads cannot use any indicia of the Olympics including showing the Participant in their Olympic uniforms or with Olympic branded items or medals.  Moreover, any advertising that makes any direct or indirect visual or verbal reference to Team USA, USOC, the Olympic or Paralympic Movements or the Games does not qualify as generic.  The USOC guidelines for Rule 40 provide some easy-to-follow illustrations of what is and what is not acceptable.

For non-U.S. ads, the IOC interpretation of Rule 40 requires that these ads must have been in the market for at least 90 days prior to the Games Period (i.e., before April 18, 2024). If the ad was not run prior to this 90-day period, the ad is in violation of the Rule. In addition, the advertising must be run consistently, and may not be materially escalated during the Games Period.  Generic ad campaigns that are planned for outside the U.S. during the Games Period must also be notified to the IOC (or the relevant NOC). 

Athlete Thank You Messages/Support Marketing

While OP Sponsors can generally use the Olympic Properties in congratulatory advertising before, during, and after the Games Period, Non-Olympic Partners with Rule 40 permission cannot engage in congratulatory advertising during the Games Period except under limited conditions.

Non-Olympic Partners with Rule 40 permission can post one (1) message to support or congratulate a participating athlete via its social media accounts and website, but different rules of some NOCs may apply. A single identical message, posted at the same time on a number of social media platforms, would count as one message. The post cannot feature the Non-Olympic Partner’s product or services and must not suggest a commercial connection between the IOC, Paris 2024, an NOC or a national Olympic team and the Non-Olympic Partner.  Athletes are permitted a total of seven (7) thank you messages that include reference to Non-Olympic Partner sponsors during the Games Period so long as they do not mention or promote the sponsor’s products or services, use the  Olympic Properties, or imply a relationship between a sponsor and Team USA, the USOPC, the Olympic or Paralympic movements, or the Games.  Non-Olympic Partners can re-tweet/share an athlete’s thank you message on the same social media platform and without comment or alteration.

Who is Penalized for Violating Rule 40
Although the Rule was established to curb ambush marketing, the enforcement mechanism is really only applicable to Participants. Non-sponsor brands do not fall under the purview of Rule 40. Even so, the Rule should be self-enforcing against non-sponsors, as a brand would not want to be the reason a Participant loses eligibility to compete in the Games.

There have been a few instances demonstrating the impact of such advertising on Participants.

During the 2022 Beijing Winter Olympics, violations of Rule 40 reportedly affected the ability of snowboarder Julia Marino in her quest to win medals in multiple events.  Marino rode a branded snowboard made by her sponsor Prada. However, after winning silver in the slopestyle and before her scheduled participation in the big air event, she was advised that the Prada snowboard was not permitted.  The IOC advised Marino that she “was competing with a snowboard with the branding of a company that doesn’t primarily have its business in sporting goods, contrary to Olympic advertising rules that protect the funding of the Olympic Movement.”  Marino countered that the Prada sub-brand did focus on sports and tried to remove the Prada logos on her board. She could not cover the logos, because she believed that would compromise the integrity of the board.  Marino claimed that her subsequent decision not to participate in the big air event was because of Rule 40, although there was some speculation that Marino was injured in a fall between the events.

Allegedly at the London 2012 games, Louis Vuitton almost landed Michael Phelps in hot water.  A photo of Phelps in a bathtub was leaked during the Games Period by Louis Vuitton, one of his sponsors. This was prohibited under the rules. The IOC/USOC apparently threatened to punish Phelps by revoking his credentials or taking his medals away. However, no punishment occurred once it became clear Phelps had no control over the release of the advertisement.

Both sponsors and non-sponsor brand owners may also face liability for ads using the Olympic Properties without consent. The enforcement mechanism used by the USOC for reaching non-sponsor brands flows from its powers under the Ted Stevens Act and U.S. trademark law.

In 2000, the USOC filed a complaint against Nabisco Biscuit Co. in 2000 for disseminating Fig Newton advertisements depicting an Olympic athlete competing in a discus event with advertising copy stating that "[t]he ancient Olympians worshipped the fig and used it for energy during training." Nabisco decided to pull the ads rather than spend time, money, and energy fighting the issue in court.

During the Rio Summer Games in 2016, the USOC sent a cease-and-desist letter to Oiselle, a female sports apparel company.  The company had an online advertising campaign that incorporated an image of Kate Grace, one of its sponsored athletes, wearing a race bib featuring images of the Olympic rings.  

Conclusion
While the country and brands gear up for the excitement of the Paris Olympics, brands should know the rules regarding incorporating Olympic references in their advertising.  This is especially true if the brands sponsor or have the endorsement of Olympic athletes.  While Rule 40 is focused on the athletes, brand owners should be very careful to ensure that their advertising does not jeopardize an Olympic athlete’s eligibility,  Doing so could harm both the image of the athlete and the brand.