'Olympic Games of sex' infringes Olympic marks, says Supreme Court

In a decision dated September 15 2009 (released only recently), the French Supreme Court had to decide whether use in a magazine of the expression 'les Olympiades du sexe' (''the Olympic Games of sex') infringed the Olympic trademarks and symbol (the five Olympic rings), which are owned by the Olympic Committee.
The Specialized IP Chamber of the Court of Appeal of Paris had previously held that there was no an infringement since such use was humoristic and was not detrimental to the reputation of the Olympic trademark. Under French law, there is no trademark infringement where the mark is used for humoristic or criticism purposes.
The Supreme Court overturned the decision of the Court of Appeal under the provisions of the Sport Code, rather than under the Intellectual Property Code. According to article L141-5 of the Sport Code, it is forbidden to register as a trademark, reproduce, imitate, affix, delete or modify the emblems, currencies, hymns and symbols of the Olympic Games without the authorization of the Olympic Committee. The Supreme Court stated that this provision creates a legal framework for the protection of the Olympic symbol that is wider than that provided under the Property Code. Therefore, the court decided to apply the provisions of the Sport Code in the present case and found that there was infringement.
Nevertheless, the court pointed out that the protection afforded to well-known marks was not absolute. 

In a later case involving the Roland Garros tennis tournament, the Paris Court of Appeal found that Unibet infringed the rights of the owner of the ROLAND GARROS mark by using it for its betting games (October 14 2009). This decision shows that the Intellectual Property Code may still be used to protect trademarks relating to the sporting field.
With regard to emblems, in American Clothing Associates NV v OHIM(Joined Cases C-202/08 P and C-208/08, July 16 2009), the European Court of Justice held that the existence of a likelihood of confusion is not required for the protection of an emblem under Article 6ter of the Paris Convention for the Protection of Industrial Property (for further details please see "ECJ rejects different level of protection for service marks").
The decisions of the French and EU courts demonstrate that sport trademarks and emblems may be protected based either on IP rights or on the provisions of the sport legislation.
Estelle Benattar and Richard Milchior, Granrut Avocats, Paris

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