Five foamy beer glasses, arranged in a pattern on a bar. At first glance, an innocent reference to carnival or conviviality. The International Olympic Committee (IOC) thought otherwise and ordered Bavaria to immediately discontinue the advertising campaign. Why? Because this arrangement is so reminiscent of the iconic logo of the Olympic Games, the five coloured interlocking rings, that (in all likelihood) this constitutes trademark infringement according to the IOC.
Five Glasses ≠ Five Rings?
Of course, five beer glasses are not an Olympic symbol in themselves. Just as five circles, five spheres or five other objects do not automatically constitute trademark infringement. In most cases, trademark infringement requires (simply put) that a sign corresponds to a registered trademark in such a way that it could cause confusion among the public about the origin of the products or services. In this case, few people would associate the origin of the five beers with the IOC.
However, with so-called ‘well-known brands’, such as the Olympic rings, the situation is often slightly different. The Olympic logo is so well known and unique worldwide that even an indirect reference – such as five beer glasses arranged in an Olympic pattern – can be enough to evoke an unauthorised association. The public recognises the reference almost immediately, thereby undermining the distinctive character and exclusivity of the Olympic brand and taking advantage of the reputation of that well-known brand to promote one’s own goods and services. And that also constitutes an infringement.
Why is it still trademark infringement?
The key lies in the special protection afforded to well-known brands. The IOC enjoys protection not only against confusion, but also against any form of ‘free riding’ on the reputation of the brand (so-called ‘reputational damage’ or ‘damage to distinctiveness’). It therefore does not matter whether Bavaria actually depicted the Olympic rings; what matters is that their campaign immediately reminded the public of the Olympic Games, without Bavaria having obtained any rights to do so.
Creative nod or infringement?
Bavaria defended itself by stating that the campaign was intended as a carnival joke. But with well-known brands, the bar for infringement is much lower. Precisely because the Olympic symbol evokes such strong associations, even a creative or humorous reference can quickly be too much. The IOC must protect its exclusive rights, not least to safeguard the value of official sponsorship contracts. And that is precisely what it does.
Conclusion
Five beer glasses are not necessarily a trademark infringement. However, if they are presented in such a way that the public immediately thinks of the Olympic rings, and thus the Olympic Games, this may still constitute an infringement – precisely because of the enormous popularity and protection of the Olympic brand. Bavaria’s campaign is therefore a classic example of how creativity in marketing can clash with the limits of trademark law for well-known brands.
(Image taken from Bavaria advertisement)
