Posted on Oct 12, 2015 in Intellectual Property by Caroline Pigott
When the Tokyo 2020 Olympic Games logo was officially unveiled to the world at a ceremony in July 2015, the design had presumably been subject to a fairly vigorous selection process. The creator of the logo, Japanese graphic designer Kenjiro Sano, probably had no idea of the impending international row that would be sparked by its unveiling.
Shortly after the official ceremony, a legal challenge was filed by Belgian 'Theatre de Liege' against the International Olympic Committee ("IOC") alleging that Kenjiro Sano's design infringed copyright in a logo Olivier Debie had designed for the theatre. The theatre was attempting to prevent use of the logo in Belgium, but before the case even reached a Court, the IOC went one step further by announcing the withdrawal of the logo altogether. The Tokyo 2020 committee is now back at the drawing board to come up with a brand new logo.
The two logos are shown side by side below.
Whilst we may never know what a Belgian Court would have decided in the circumstances, it seems unlikely that the challenge would have held much weight in the UK Courts.
A logo is an interesting thing from an intellectual property perspective. On the one hand, there is copyright. In the UK there is no registration process for copyright; it exists automatically in original works containing an element of artistic integrity. A logo may or may not attract copyright depending on the level of artistic input and originality it contains. Simple text, with no real artistic input, such as the Google logo for example, may not attract copyright, despite being extremely well known and recognisable. The position is less clear with the Tokyo 2020 design by Kenjiro Sano. It certainly contains a greater degree of creativity than simple text, so the likelihood is that it would be protected by copyright.
On the other hand, there are trade marks. Any mark which is sufficiently distinctive (and non-descriptive) and is used by the public to identify a particular company or brand can be a trade mark. There is no requirement for any degree of artistic input in the creation of a trade mark. The Google logo would therefore undoubtedly be considered a trademark. Had the Tokyo 2020 logo by Kenjiro Sano been used without challenge then the extensive worldwide circulation of Olympic branding would almost certainly have meant the logo satisfied the criteria to be a trade mark.
In the UK trade marks can be registered, giving the owner a definitive course of action against any infringer. However where an unregistered mark, such as Olivier Debie's theatre logo, is used without permission, protection is still available through a concept known as 'passing off.'
Passing off protects a slightly wider scope than just unregistered trade marks. To make a successful claim against the IOC however, Theatre de Liege would have to have shown:
that it had established goodwill in its brand in a particular geographical location, i.e. that the Belgian (or wider) public recognised its branding and associated it with the Theatre; and
the use of Kenjiro Sano's logo by Tokyo 2020 caused confusion in minds of the public in the sense that they believed Theatre de Liege and Tokyo 2020 were the same organisation, or in some way connected; and
that the confusion created in the minds of the public resulted in damage to Theatre de Liege, i.e. a loss of business due to the erroneous belief of an association with Tokyo 2020.
Theatre de Liege may well have been able to demonstrate that it had established goodwill. Beyond that however, it seems highly unlikely that the theatre would have been able to show that they lost business as a result of the public believing there to be some form of association between the Belgian theatre and a globally recognised sporting contest.
Caroline Pigott is specialist Intellectual Property, Technology and Media Solcitor. We are always delighted to talk without obligation about whether we might meet your needs. Please feel free to contact Caroline using the details below.