Advertising with "Olympic-suspicious" and "Olympic-ripe"

Olympics is not only one of the largest sporting events, but also a legally protected term under the Olympic Protection Act. The Federal Court of Justice (BGH) has now clarified whether and, if so, how one may nevertheless advertise with the terms "Olympic-suspicious" or "Olympic-ripe".

The German Olympic Sports Confederation warned a textile wholesale merchant who, during the 2016 Olympic Games, advertised sports clothing on his website using the terms "Olympic-suspicious" and "Olympic-ripe".

The textile wholesale merchant then issued a cease-and-desist declaration, which the German Olympic Sports Confederation accepted. By way of legal action, the German Olympic Sports Confederation sought reimbursement of the warning letter costs.

The German Olympic Sports Confederation saw a violation of the Olympic Protection Act. The Regional Court (LG) Rostock upheld its claim and ordered the textile wholesale merchant to cease and desist as requested. The latter was successful in its appeal. The Higher Regional Court (OLG) Rostock dismissed the action. Against this judgment, the German Olympic Sports Confederation appealed in turn.

The decision of the BGH

The appeal was dismissed by the Federal Court of Justice (BGH) by judgment of 07.03.2019 – Az. I ZR 225/17 (Press release of the BGH) and the dismissal of the action was affirmed.

The BGH regarded the warning letter of the German Olympic Sports Confederation as unjustified. There was no unlawful exploitation of the prestige of the Olympic Games.

The judges in Karlsruhe reasoned as follows. Although the contested advertising promoted sports textiles and thus products that have a factual proximity to the Olympic Games. However, a close link to the Olympic Games was not established merely by the fact that words such as "Olympic-ripe" and "Olympic-suspicious" were used in a product-related manner as synonyms for exceptionally good performance. This result was also supported by § 4 Nr. 2 OlympSchG, which – subject to the absence of unfair practices – expressly permitted the use of Olympic designations as an indication of features or properties of goods, services or persons. A visual reference to the Olympic Games sufficient for unfair exploitation of prestige was also lacking. The medal depicted in the contested advertising, held in the hand of an athlete, was not per se an Olympic motif. This representation therefore did not fall within the scope of protection of the Olympic Protection Act.

Conclusion

Caution is required when using Olympic designations. Often a violation of the OlympSchG is present and the violation can be subject to a warning letter. Before using Olympic designations, it is advisable in the specific individual case to obtain legal advice.