A Canadian Press Story today reports that the Vancouver Organizing Committee for the 2010 Winter Olympic Games (VANOC) has recently filed applications with the Canadian Intellectual Property Office (CIPO) to register the phrases WITH GLOWING HEARTS and DES PLUS BRILLIANTS EXPLOITS as trademarks. These applications are filed based on proposed use in Canada in association with a lengthy shopping list of goods and services. They also claim priority from earlier filed European Community Trademark (CTM) applications, filed with the Office for Harmonization in the Internal Market (OHIM) in March of 2008. Interestingly, the CTM applications are filed in the name of Filemot Technology Law Ltd. and not VANOC.
Canadian readers will immediately recognize WITH GLOWING HEARTS and DES PLUS BRILLIANTS EXPLOITS as phrases from “O Canada”, the Canadian national anthem. Copyright buffs out there might already know that the anthem was long ago placed in the public domain by the Government of Canada pursuant to the National Anthem Act.
As word of VANOC’s plan has leaked ahead of today’s press release – see below, concerns have arisen that VANOC’s move will lead to enforcement of its trademark rights against people who sing the anthem in schools and at sporting events. Clearly that will not be the case: there is a difference between the copyright in the words and music of the anthem, and the use of some of those words as a trademark to indicate a particular source of goods and services. As sometimes happens, the public seems to have confused copyright and trademark issues – perhaps not surprisingly, as it also happens to lawyers who don’t practice in the area.
The irony of there being public concern at VANOC’s use in this regard is punctuated by a story in the Globe & Mail, in which the plight of a small Stratford, Ontario business is referenced, where that business claims to have already adopted and used the phrase WITH GLOWING HEARTS as a trademark in association with woollen clothing. This self proclaimed "Mom-preneur" is already talking about seeking advice from her own lawyer about her rights in the face of this imminent Olympic-sized onslaught. While the scale of the parties is obviously different, it’s not clear why there are not similar concerns about her use of this anthem-related mark for similar business purposes.
For its part, VANOC issued a press release today in which it announced that these phrases are now the official mottos for the 2010 Winter Olympic and Paralympic Games. The press release specifically addresses and attempts to allay the concern that VANOC will use any trademark rights for the purpose of stopping people from using and reproducing the national anthem, and more specifically these phrases, other than in a commercial context. One further point of interest – the french lyrics of the national anthem use the word “brillant” (with only one “i”) but the application filed by VANOC contains the word “BRILLIANT” (with two “i”s).
