The Beijing Olympic Intellectual Property Regulations: An Initial Step Toward Olympic IP Protection in China
January 31, 2002 | BY
clpstaff &clp articles &Protects the licencing and use of Olympic marks, symbols, mascots, broadcast rights and other intellectual property.
By Steve Toronto & Chao Yijun, Morrison & Foerster
Beginning with the commercially successful Los Angeles summer Olympics in 1984, the licensing and use of Olympic marks, symbols, mascots, broadcast rights and other intellectual property (Olympic IP) have been critical to financing the Olympic Games. Accordingly, in each jurisdiction where the Olympics have been held, local lawmakers have adopted rules, regulations and laws to ensure that special protection is given to Olympic IP. In the United States, Olympic IP has been granted legal protection that extends well beyond that granted to other intellectual property. It is no surprise that soon after Beijing was selected as host of the 2008 Summer Games, regulations were promulgated to provide special protection for the Olympic IP needed to help finance Beijing's "Great Olympics". It should also be noted that protecting Olympic IP is not only in the interest of Beijing and China but also a contractual obligation under the host city contract with the International Olympic Committee (IOC), the China Olympic Committee (COC) and Beijing Municipality (the Host City Contract).
The Beijing Regulations are intended to provide broad protection for all aspects of the use of Olympic IP in Beijing Municipality. With the establishment of the Beijing Organizing Committee of the Olympic Games (the BOCOG) in December 2001 and acceleration of activities related to the 2008 Summer Games, it is expected that in the near future, national-level regulations will also be promulgated. Because of the extensive reach of both Olympic IP generally and the Beijing Regulations particularly, parties involved directly or indirectly with the Beijing Olympics should become familiar with these and any further regulations.
Who and What Is Protected?
Article 2 of the Beijing Regulations identifies the parties to be protected by these provisions as the IOC, the COC, the BOCOG and their respective authorized licensees. The specific rights of principal parties and principal licensees are generally detailed in the Host City Contract referred to indirectly in Article 2, which is the fundamental document establishing the relationship between the various Olympic entities. Unfortunately, this document is not generally publicly available. Article 6 of the Beijing Regulations further alludes to the relationship and the allocation of the rights among those rights holders under the Host City Contract.
Articles 2 and 3 also demonstrate the extent to which Olympic IP will be protected. The Beijing Regulations cover, as expected, trademark, patent and copyright protection for property such as the Olympic symbol (five Olympic Rings), flag, anthem and motto as well as the terms or designs containing the words OLYMPIC, OLYMPICS, OLYMPIAD and OLYMPIC GAMES. They also cover the logos, mascots, names, symbols (including Beijing 2008), anthem and slogans developed by Beijing. Importantly, Article 3(iv) provides a catchall of "other subjects of Olympic intellectual property rights". This presumably refers to a wide range of proprietary information and objects that can include such disparate subjects as medical data, statistical data, domain names, and moulds of badges, medals and torches. The reason for this category of Olympic IP is to accommodate provisions that are detailed in the Host City Contract. Reference is made to the various intellectual property rights stipulated under thePRC Trademark Law (中华人民共和国商标法) (Trademark Law), PRC Patent Law (中华人民共和国专利法) (Patent Law) and PRC Copyright Law (中华人民共和国著作权法) (Copyright Law). Presumably, the Beijing Regulations would not pre-empt applicability of these laws but the relationship of the Beijing Regulations to such laws is not clearly stated.
Scope of Protection
While traditional IP protections are referenced in the Beijing Regulations and are already available to any holder of intellectual property rights, the Beijing Regulations also extend protection that is not available under existing PRC law. First, unlike the Trademark Law, no registration appears to be specifically required for the owners of Olympic IP to enforce their rights. Protection would presumably extend to all classes of goods and services and all uses of Olympic IP without limitation. It seems likely owners of the trademarks and other property will continue to follow normal procedures required under existing law to protect various forms of Olympic IP, however, it appears that blanket protection is afforded even before any such procedures are undertaken. This should effectively preclude any other parties from attempting pre-emptive filings or registrations.
Unlike the Patent Law and the Copyright Law, which provide certain exceptions to the exclusive use of intellectual property by the rights holders, any use of Olympic IP for any reason must be approved or authorized. Both Article 7 and Article 8 provide no express exceptions or limits to the absolute right to use Olympic IP by the parties who own or properly licence it.
Even prior to Beijing being selected as the host city, there were many cases of unauthorized use of Olympic IP in China. Unauthorized use, a problem at every Olympics, is expected to become more prevalent now that Beijing has been chosen. The intention to control and mitigate such infringement is reflected in Article 8 of the Beijing Regulations that lists a range of prohibited activities, largely already provided under existing PRC law.
A potentially interesting innovation is the notion of deputizing third parties to help enforce the Beijing Regulations. Article 11 provides that "any organization and individual may report any activity" that violates the Beijing Regulations and will "be rewarded if the case proves true". This is a marked departure from existing law that generally permits only those with rights to the intellectual property to initiate enforcement actions. Details are not spelled out but the idea of millions of Beijing residents being motivated to watch for infringement of Olympic IP is unique.
Enforcement
Generally, enforcement of the Beijing Regulations is intended to be conducted by the enforcement agencies under the Beijing Municipal Government that are relied upon for all other intellectual property rights enforcement. Article 10 identifies the local Administration for Industry and Commerce, the Patent Bureau and the Copyright Bureau. Other related government authorities, such as the Administrative Departments of Press, the Bureau of Culture, Public Security Bureau, Administration of Customs and Bureau of Urban Management and Inspection are also to take measures to protect Olympic IP within the scope of their respective activities. As stipulated in Article 12, these agencies are empowered to take a number of measures against infringers, such as seizing and destroying goods that infringe patents or that bear counterfeit trademarks or special symbols, as well as the moulds, printing plates and other tools directly used in such infringement activities.
The Beijing Regulations also authorize government agencies to impose fines of up to Rmb30,000 against infringers. Additionally, anyone caught engaging in infringing activities will also bear the corresponding civil liabilities according to other relevant laws.
Finally, the owners of Olympic IP have the right to file a complaint with the relevant departments, or initiate a lawsuit to protect their rights.
Certainly, Beijing and its various administrative entities are motivated to protect Olympic IP for a variety of reasons. Whether enforcement is intended to be conducted in accordance with existing laws for the protection of intellectual property or whether the regulations will permit new flexibility in enforcement is unclear.
Conclusion
The Beijing Regulations provide the Beijing Municipal Government with a potentially powerful weapon to fight expected infringement of Olympic IP. How far it will be used is not yet clear. It is clear that additional regulations are needed to expand protection to activities outside Beijing. National regulations have not yet been promulgated but are expected. More importantly, Beijing's and China's need to protect Olympic IP provides extraordinary incentive for China to strengthen its ability to enforce intellectual property rights - one driven by relatively direct government interests. It can only be hoped that in the process of doing so, these agencies will be better equipped to handle the broad range of non-Olympic IP infringement that has historically hindered the development, promulgation and use of intellectual property in China.
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