“Olympic-quality” clothing not anti-competitive

The I. Civil Senate of the Federal Court of Justice, which is responsible among other things for the protection of industrial property rights, has ruled that the use of the designations “Olympiaverdächtig” and “olympiareif” in commercial transactions for the advertising of sports textiles as such does not violate the Olympia Protection Act.

The plaintiff is the German Olympic Sports Confederation. The defendant operates a wholesale textile business. During the 2016 Olympics, it advertised sportswear on its website with the statements “Olympic-worthy” and “Olympic-ready.”

The plaintiff sees this as a violation of the Olympia Protection Act, which protects the Olympic designations (Section 1 (1) and (3) OlympSchG) against certain uses by third parties. After being warned by the plaintiff, the defendant issued a cease-and-desist declaration, which the plaintiff accepted. In the present action, he is demanding reimbursement of the warning costs from the defendant.

The district court sentenced the defendant as requested. The defendant’s appeal against this was successful and led to the dismissal of the action. The court of appeal assumed that the challenged advertising did not violate § 3 para. 2 No. 2 OlympSchG, because advertising with “Olympic-suspicious” or “Olympic-ready” sportswear was not likely to cause a risk of direct confusion with the services provided or products sold by the plaintiff or the International Olympic Committee. The advertising also did not constitute unfair exploitation of the esteem in which the Olympic Games were held. The plaintiff was therefore not entitled to injunctive relief pursuant to Section 5 para. 1 OlympSchG, so that he could also not demand reimbursement of warning costs.

The Federal Court of Justice dismissed the plaintiff’s appeal and upheld the dismissal of the payment claim.

The plaintiff’s warning was unjustified, since the requirements for exploiting the esteem of the Olympic designations within the meaning of § 3 para. 2 sentence 1 no. 2 case 2 in conjunction with sentence 2 OlympSchG were not present. An unfair exploitation of the esteem of the Olympic Games does not already lie in every use which may impair an optimization of the commercial exploitation of the Olympic designations by the property right holders. However, the line to unfair exploitation is crossed if, through a close reference to the Olympic Games, their esteem is exploited for the promotion of products and their characteristics in a way that only an official sponsor is entitled to do or, for example, a sporting goods manufacturer who is not a sponsor but whose products are used by athletes at the Olympic Games. Such a close connection to the Olympic Games may exist, for example, if products that are factually close to the Olympic Games or the Olympic Movement are not only advertised with designations that are similar to the Olympic designations, but also expressly refer to the Olympic Games or the Olympic Movement in words or images.

It is true that the defendant advertised sports textiles with the challenged advertisement and thus products that have a factual proximity to the Olympic Games. However, a close link to the Olympic Games is not established merely by using words such as “Olympic-ready” and “Olympic-suitable” in a product-related manner as synonyms for an exceptionally good performance. This result is also supported by § 4 No. 2 OlympSchG, which expressly permits the use of the Olympic designations as an indication of characteristics or properties of goods, services or persons – subject to the proviso that there is no unfairness. A figurative reference to the Olympic Games sufficient for an unfair exploitation of the esteem is also missing. The medal in the hand of an athlete depicted in the challenged advertisement is not per se an Olympic motif. Therefore, this representation does not fall within the scope of protection of the Olympia Protection Act.