The Canadian government has now come forward with new legislation to prevent unauthorized persons from marketing their wares and services in association the 2010 Olympic and Paralympic Winter Games. As noted in an earlier blog, similar legislation has been introduced prior to other Games, including legislation introduced by Italy prior to the 2006 Turin Winter Games.
The Olympic and Paralympic Marks Act (Bill C-47) received a first reading in the House of Commons on Friday, March 2, 2007. Most importantly, section 3 of the Act prohibits any person from adopting or using in connection with a business, as a trademark or otherwise, an Olympic or Paralympic mark or a mark that resembles an Olympic or Parlympic mark. Note the reference to “in connection with a business”. Schedules 1 and 2 of the Act set out lists of the Olympic and Paralympic trademarks.
There are exceptions to this prohibition, including, of course, use by the Canadian Olympic Committee and Canadian Paralympic Committee and persons acting with their consent, but also excused are owners or licensees of marks that were being used prior to March 2, 2007.
Section 3(5) of the Act specifically allows for use of the Olympic trademarks in news reports and “for purposes of criticism”.
Section 4 of the Act prohibits anyone from promoting or otherwise directing public attention to a business in such manner as to lead the public into believing that there is a connection with the COC or CPC. A court must take into consideration the use of a combination of the expressions set out in Part 1 of Schedule 3 of the Act (Games, 2010, Twenty-ten, 21st, Twenty-first, XXIst, 10th, Tenth, Xth, Medals) or a combination of an expression in Part 1 of Schedule 3 with any of the expressions in Part 2 of Schedule 3 (Winter, Gold, Silver, Bronze, Sponsor, Vancouver, Whistler).
Potential remedies include injunctions (in respect of which irreparable harm need not be proved), damages, punitive damages, publication of corrective advertisements and destruction of wares.
The Act includes a “sunset clause” such that Schedule 2 is repealed on December 31, 2010. In the interim, and assuming the legislation is passed, it will be interesting to monitor just how effective the legislation proves to be.