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Journal of Sport Management, 2007, 21, 79-102 © 2007 Human Kinetics, Inc.

Sport Law

McKelvey is with the Dept. of Sport Management, University of Massachusetts, Amherst, MA 01003. Moorman is with the Dept. of Health and Sport Sciences, University of Louisville, Louisville, KY 40292.

Bush-Whacked: A Legal Analysis of the Unauthorized Use of Sport Organizations’

Intellectual Property in Political Campaign Advertising

Steve McKelvey University of Massachusetts at

Amherst

Anita M. Moorman University of Louisville

Many 2004 presidential-election campaign advertisements were strategically targeted to appeal to viewers of sporting event telecasts. The Bush–Cheney campaign’s unauthorized use of the term Olympic in advertisements that aired throughout the 2004 Summer Olympic Games telecasts raised novel legal issues at the intersection of trademark law and constitutionally protected political speech. This article provides an analysis of the legal issues surrounding the Bush–Cheney campaign’s unauthorized use of the term Olympic. This article first examines the viability of trademark, unfair competition, and misappropriation-based claims potentially available to the United States Olympic Committee and other sport organizations. The article then examines some state-based regulations and case law regarding false and deceptive political campaign advertising that suggests a possible legal challenge to future political advertising campaigns that use sport organization trademarks without authorization. In addition to providing implica- tions for sport managers, this article suggests that Congress may need to revisit latitudes afforded political speech to prevent a dangerous trend of political can- didates’ misrepresenting their association with sport organizations.

The 2004 Summer Olympic Games in Athens, Greece, coincided with two major events on the United States home front. While swimming phenom Michael Phelps was among those capturing the hearts and imagination of the sporting public, the United States was confronting a controversial war in Iraq and the final months of a fiercely contested presidential campaign pitting incumbents George W. Bush and Dick Cheney against John Kerry and John Edwards. One of the pri- mary media and target marketing strategies of the Bush–Cheney campaign was to advertise during sport telecasts, which offered a chance to reach audiences with specific political leanings (Bernstein, 2005). In addition to advertising in telecasts of NASCAR, golf, and hockey—sports identified with heavy Republican audi-

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ences—the Bush–Cheney campaign “went so far as to pinpoint specific broadcasts during the Olympic Games to match up ads with particular sports” (Bernstein, 2005, p. 15). The Bush–Cheney campaign spent more than $20 million during the Olympics in August 2005 (Bernstein, 2005).

One advertisement in particular in the Bush–Cheney reelection campaign drew the ire of the International Olympic Committee (IOC), the worldwide govern- ing body of the Olympic Movement, and the United States Olympic Committee (USOC), which through Congressional statute is responsible for governing Olympic activities in the United States. The advertisement, titled “Victory,” aired during NBC’s Olympic Games broadcasts. While featuring visual images of an Olympic stadium with flags flying and generic elite swimmers racing in a pool, the ad began with President Bush stating, “I’m George W. Bush and I approve this message.” A voice-over stated the following:

In 1972, there were 40 democracies in the world. Today, 120. Freedom is spreading throughout the world like a sunrise. And this Olympics, there will be two more free nations, and two fewer terrorist regimes. With strength, resolve, and courage, democracy will triumph over terror. And, hope will defeat hatred. (“Presidential election ads,” 2005; also see Jenkins, 2004)

In addition to this television advertising campaign using the term Olympics, the Bush–Cheney reelection campaign later used the term Olympics in an interac- tive game on its official Web site called “John Kerry’s Flip Flop Olympics.” The game-show format, designed as a parody, allowed participants to guess Kerry’s so-called flip-flops on campaign issues (“Bush warned,” 2004).

In response to what it viewed as an unauthorized use of the term Olympics, the USOC sent letters to the Bush–Cheney reelection campaign formally requesting it cease running the “Victory” ad, stating, “It is the responsibility of the USOC to manage Olympic marks, terms and images in the U.S., and also to remain apolitical” (Whitlock, 2004, p. A12). The Bush–Cheney reelection campaign refused to acqui- esce to the USOC, citing the protections afforded free speech. The Bush–Cheney campaign publicly responded, “We are on firm legal ground to mention the Olympics to make a factual point in a political advertisement” (Whitlock, 2004, p. A12). The USOC also subsequently contacted the Bush–Cheney reelection campaign seek- ing removal of the word Olympics from the Kerry parody but was again rebuffed (“Bush warned,” 2004).

Although the Bush–Cheney reelection campaign’s use of the term Olympics in its advertising was not legally pursued by the USOC, these advertisements raise important legal questions regarding the extent to which political campaigns can, or should be allowed to, use registered trademarks of sport organizations in their advertising campaigns. While generic references to a sport organization (i.e., “the hometown team”) are reasonable to expect, it is arguable that political advertis- ing campaigns can unfairly cross the line when they use, without authorization, the trademarks of a sport organization that result in creating the appearance of an implied endorsement by that sport organization, or that trades off the goodwill of that organization. The issue becomes even more intriguing if one considers that political advertising campaigns are becoming increasingly commercial in the sense of marketing a product or service (Bernstein, 2005). Politics and sports are not unfamiliar bedfellows as Eitzen and Sage (1993) observed in their Sociology of North American Sport text:

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The linkage between sport and politics is quite obvious when the impact of the U.S. Government on sports is considered. Several illustrations make this point: (1) Legislation has been passed exempting professional sports from antitrust laws; (2) tax laws give special concessions to owners of professional teams; (3) the blackouts of televised home games have been lifted for professional football under certain circumstances despite the protests of the league commissioner and the owners; (4) Congress decides which sport organizations will have the exclusive right to select and train athletes for the Olympic Games. (p. 218)

However, the collision between political uses of sport and private business interests has created some new legal challenges for sport managers. This article provides an analysis of the legal labyrinth surrounding the Bush–Cheney reelec- tion campaign’s use of Olympics in campaign advertising. First, this article examines the law establishing protections for the USOC and Olympic marks and symbols to determine if, in fact, the USOC had a viable legal claim against the Bush–Cheney reelection campaign’s unauthorized use of the term Olympics. Next, the possible application of other federal and state laws, including the Lanham Act, is examined to determine if the USOC and other U.S. sport proper- ties have alternative legal claims that could provide viable remedies against the unauthorized use of trademarks in political advertising campaigns. This article also explores laws and case law regarding false and deceptive campaign advertis- ing to determine if this provides a viable legal challenge to political advertising campaigns using trademarks of sport organizations without authorization. Finally, this article suggests Congress may need to revisit the latitudes afforded political speech to prevent what may become a dangerous trend of political candidates misleading or misrepresenting their association with, or implying an endorsement by, sport organizations.

Application of the Ted Stevens Olympic and Amateur Sports Act to the Bush–Cheney

Advertising Campaign The Olympic program in the United States is governed by the USOC, which was created by Congress through Section 110 of the Amateur Sports Act of 1978. This act, which today exists in its amended form as the Ted Stevens Olympic and Ama- teur Sports Act of 1998 (hereinafter OASA), grants the USOC the power to govern amateur athletic events pertaining to the Olympic Games, to exercise exclusive jurisdiction over all matters pertaining to the United States’ participation in the Olympic Movement, and to maintain exclusive control, pursuant to §220506(a), over the use of Olympic marks, symbols, and technology within the United States (United States Olympic Comm. v. Intelicense Corp., 1984). Control over Olympic symbols is especially important because the United States is one of the few coun- tries whose National Olympic Committee does not receive direct monetary support from the government. In addition to the protections afforded the USOC marks and symbols via the OASA, the USOC also owns more than 175 active federally regis- tered trademarks. This control enables the USOC to attract the corporate sponsors, suppliers, and licensees that are critical to the funding and ultimately the success of the U.S. Olympic movement and its athletes.

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The OASA provides that the USOC may bring a civil action against a person who, without the consent of the USOC, uses for “the purposes of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition” the Olympic words, symbols, and emblems (36 U.S.C. § 220506[c], 2005). The OASA also provides the USOC with additional ammuni- tion with which to fight alleged infringers. As will be discussed in further detail, non-Olympic-related trademark-infringement claims are typically based on either section 32 or section 43(a) of the Lanham Act, requiring the plaintiff to demonstrate a likelihood of consumer confusion in order to prevail on an infringement claim. However, the express language of OASA lessens the USOC’s burden of proof by prohibiting any combination or simulation of the specified words “tending to cause confusion or mistake, to deceive, or to falsely suggest a connection with the cor- poration or any Olympic, Paralympic, or Pan-American Games activity (emphasis added; 36 U.S.C. § 220506[c][3], 2005). Thus, the OASA provides the USOC much stronger legal grounds on which to prevent the misuse or misappropriation of its protected words and symbols (Moorman, 2002).

This broad legal protection has enabled the USOC to be vigilant in addressing unauthorized advertising and promotions that trade off Olympic-themed terminol- ogy and imagery. For example, the USOC’s aggressive enforcement of its rights was illustrated during the 2002 Winter Olympic Games in Salt Lake City, Utah, in successful actions against such companies as Discount Tire (halting a billboard advertisement depicting tires in the form of the Olympic rings), Brighton Ski Resort (halting an advertising campaign using the Web address www.Brightonupthegames. com), Nabisco’s Fig Newton brand (print advertisements depicting an ancient Olympic athlete throwing a discus wearing only a fig leaf), and Quiksilver (halting the sale of apparel that featured interlocking circles similar to the Olympic rings incorporating the words Salt Lake City—Winter 2002 and Olympian) (McKelvey & Grady, 2004a).

The grant of broad rights to the USOC and the authority to police the use of its marks and symbols have also been upheld by the U.S. Supreme Court. In San Fran- cisco Arts & Athletics v. United States Olympic Committee (1987), a case involving the use of the term Gay Olympics, the Court ruled that the word Olympic was not generic and was thereby within the protections of trademark law. The Court also held that the USOC’s exclusive rights do not require the USOC to prove that an unauthor- ized use causes consumer confusion, and that traditional Lanham Act defenses, such as fair use, were not available to infringers (also see Pendras, 2002).

As discussed in greater detail in the following section, one commentator has suggested that the San Francisco Arts & Athletics, Inc. case supports the notion that not all noncommercial speech using registered trademarks is protected, based on the fact that San Francisco Arts & Athletics, Inc. argued that its use of Gay Olympics was intended to convey a political message (Shakow, 1998).

Although extensive, the exclusive rights granted to the USOC for the use of Olympic marks do, however, include some exceptions built into the OASA, as well as judicially carved limitations (Nish, 2003). Several lower courts have carved out permissive uses of the word Olympics. These cases have turned on the distinction between commercial and noncommercial speech, although, as seen in the recent Kasky v. Nike, Inc. (2002) decision, the precise boundary between the two has not been clearly defined. The U.S. Supreme Court first defined commercial speech

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as “speech which does no more than propose a commercial transaction” (Central Hudson Gas & Electric v. Public Service Comm’n, 1980, p. 562). In a much-criti- cized decision, the California Supreme Court recently expanded this definition, stating that “speech is commercial in its content if it is likely to influence consumers in their commercial decisions” (Kasky v. Nike, Inc, 2002, p. 969). Noncommer- cial speech, which is afforded the highest level of constitutional protection from governmental intervention, includes news reporting, editorials, parody, satire, and other forms of expression that are not deemed to fall within the ambit of a com- mercial transaction. Political speech has generally been held to fall squarely within the realm of noncommercial speech, although exceptions have arisen. The level of First Amendment protection to be afforded political advertising is discussed in more detail in later sections.

The USOC has attempted to prohibit noncommercial uses of its protected marks. In Stop the Olympic Prison v. USOC (1980), a citizens group used the word Olympic and the Olympic symbol (superimposed over five vertical steel-gray bars representing a proposed prison) on posters distributed in protest of the conversion of the former Olympic facilities in Lake Placid into a prison. This use was held not to violate OASA. The court held for the plaintiffs on the grounds that the posters were not sold or distributed commercially, and the use was not likely to be confused as an endorsement by the USOC. The court determined that, despite the broad language contained in §220506(a) of the OASA, the exclusive use provision was designed not as a blanket prohibition of all uses whether commercial or noncommercial, but to prevent use of the Olympic words and symbols as trademarks or service marks in connection with any types of goods or services, by anyone other than the USOC. Nevertheless, the court found that the legislature intended to “establish strong protection of the Olympic symbols, in part to ensure the market value of licenses for their use” (Stop the Olympic Prison, 1980, p. 1120).

Based on its interpretation of the OASA and the Supreme Court’s decision in San Francisco Arts & Athletics, Inc., a lower court also determined that the Act does not apply to certain noncommercial speech. Prior to the 2000 Olympic Games, the USOC sued American Media, Inc., for publishing a preview maga- zine titled “Olympics USA” (United States Olympic Comm. v. American Media, Inc., 2001). The USOC argued that the use of the word Olympic and the Olympic symbol without its permission constituted unauthorized use “for the purpose of trade and to induce the sales of goods” (American Media, p. 1203). On the issue of whether the Act could be applied to anything other than commercial speech, the court held that the uses described in 220506(c), namely for the “purposes of trade” or to “induce the sales of goods or services,” were commercial speech, and further concluded that the statute “does not apply to the use of protected Olympic marks in non-commercial speech” (American Media, p. 1205). The court found the publication “Olympics USA” to be noncommercial speech and held that to apply the commercial speech doctrine to a publication would raise serious issues regarding the First Amendment protection afforded news media organizations. The court, citing Stop the Olympic Prison, concluded that “to characterize all or any part of Olympic USA as commercial speech would go against nearly every attempt to define commercial speech” (American Media, p. 1209). The USOC also claimed that the activity was an attempt to “pass off” the magazine as if it were authorized by the USOC in “a manner calculated to deceive USOC’s customers and members

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of the general public” (American Media, p. 1203). On this issue, the court observed that it is accepted doctrine that the Lanham Act may restrict noncommercial speech “where the public interest in avoiding consumer confusion outweighs the public interest in free expression” (American Media, p. 1209, citing Rogers v. Grimaldi, 1989, p. 999). The court further noted that the USOC had not specifically cited the Lanham Act with regard to this claim that the publication falsely implied affilia- tion with or endorsement by the USOC. Thus, based on the holdings in Stop the Olympic Prison and American Media, as well as the Ted Stevens Act’s requirement of commercial usage, it would appear that the USOC would have faced a difficult legal hurdle in using section 220606 of the OASA to challenge the Bush–Cheney reelection campaign’s unauthorized use of the term Olympics, given the First Amendment protection afforded to noncommercial speech.

Application of Trademark, Unfair Competition, and Misappropriation Claims to the Bush–Cheney

Advertising Campaign Assuming the OASA would not provide an avenue of relief for the USOC, one must explore if any other avenues of trademark law might be applicable. Trademark law remedies exist at both the federal and state levels, in both common law and in statute. Potential causes of action include trademark infringement, false designa- tion of origin and false descriptions, trademark dilution, and misappropriation of goodwill.

Trademark Infringement

On the federal level, Congress enacted the Lanham Act to protect persons engaged in commerce against trademark infringement (15 U.S.C. § 1114 et seq.). Section 32 provides a cause of action for infringement of registered trademarks against any person who “use[s] in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive” (15 U.S.C. § 1114[1][a]).

However, the potential use of Section 32 by the USOC presents the same hurdles addressed previously: the requirement that use of its marks and symbols in political speech, such as the Bush–Cheney campaign’s use of the term Olympics, be considered to be use “in commerce.” In one case supporting this argument, George Lucas, owner of the Star Wars movie series, was denied an injunction to stop several public interest groups from using the term star wars to refer to the government’s Strategic Defense Initiative because this was not a commercial use (Lucasfilm, Ltd. v. High Frontier, 1985). The Lanham Act has, however, been successfully invoked to challenge parties engaged in using protected marks to dis- seminate political messages. (cf. United We Stand America, Inc. v. United We Stand, America New York, Inc., 1997; Jews for Jesus v. Brodsky, 1998). However, these cases involved competing political groups. No federal court had ruled in a case involving a commercial plaintiff pursuing an action against an individual politician

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during a political campaign under the Lanham Act until relatively recently. Two cases specifically address whether a candidate’s political advertisement that makes an alleged unauthorized use of a protected trademark is subject to the Lanham Act infringement, dilution, and false designation of origin provisions.

First, in American Family Life Insurance Company v. Hagan (2002), Ameri- can Family Life Insurance Company (AFLAC) filed suit against a gubernatorial candidate in the State of Ohio for an advertisement that played off of AFLAC’s well-known commercials featuring the AFLAC duck. The commercials included a white cartoon duck and the duck would quack “TaftQuack” several times during the commercial to portray the candidate’s opponent, Taft, as “ducking” the issues. AFLAC sued for trademark infringement, copyright infringement, trademark and service mark dilution, false designation of origin, and unfair competition and trade- mark infringement under Ohio common law. Interestingly, the Ohio District Court separated AFLAC’s claims into two categories: the dilution claims and everything else. The district court then disposed of all the claims other than the dilution claims by focusing on the “single common element” among them, that AFLAC must show that the use of the AFLAC’s works or marks were likely to cause confusion. With regard to these nondilution claims, the district court in AFLAC easily concluded that Hagan’s use of the TaftQuack marks was a “commercial use in commerce” but disposed of those claims just as easily by finding that AFLAC could not prevail on the likelihood of confusion element; thus, it was not entitled to injunctive relief.

Likelihood of confusion is a question of fact, and each federal district court has constructed its own list of factors, with no single factor being determinative, in weighing the likelihood of confusion. However, each court’s list of factors has been fashioned from the seminal case of Polaroid Corp. v. Polarad Electronics Corp. (1961), which identified the following eight factors (the “Polaroid factors”): strength of plaintiff’s mark, similarity of uses, proximity of the products, likelihood that the prior owner will bridge the gap (this refers to one of the manufacturers’ expanding into the domain of the other), actual confusion, defendant’s good or bad faith in using plaintiff’s mark, quality of the junior user’s product, and sophistica- tion of consumers.

The district court applied the previously mentioned factors in noting that AFLAC had presented no evidence of actual confusion, and the degree of similarity between Hagan’s mark and AFLAC’s marks was quite low in that the AFLAC duck was very realistic while the Hagan duck was crudely drawn and satirical. Thus the district court concluded that there was no substantial likelihood that reasonable members of the public would perceive Hagan as “affiliated with, connected with, or sponsored by” AFLAC (AFLAC v. Hagan, 2002, p. 691).

A similar outcome resulted in MasterCard Int’l Inc. v. Nader 2000 Primary Committee, Inc (2004), in which MasterCard sued Ralph Nader’s presidential campaign for a Nader advertisement that was a takeoff of MasterCard’s “Price- less”-themed advertisements. MasterCard asserted claims based on unfair competi- tion, misappropriation, trademark infringement, and trademark dilution under the Lanham Act and state common law. MasterCard also asserted copyright infringe- ment claims under the Copyright Act of 1976. The New York District Court did not expressly address whether a political advertisement was within the scope of the “in commerce” provisions for purposes of disposing of the trademark-infringement claims. Instead, similar to the AFLAC court, the district court applied the Polaroid

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factors and concluded that Nader was entitled to summary judgment since the bal- ance of the factors weighed in favor of Nader and there was no reasonable likeli- hood that consumers would be confused about whether MasterCard sponsored or endorsed Nader’s campaign advertisement.

Thus, even assuming arguendo that the Lanham Acts remedies related to trade- mark infringement are applicable to unauthorized uses in political advertising, the touchstone of liability for trademark infringement—proving infringement is “likely to cause confusion or to cause mistake, or to deceive” (15 U.S.C. § 1114[1][a], 1997)—would provide a significant hurdle for the USOC.

The USOC would face a difficult challenge, as did AFLAC and MasterCard, in convincing a federal court that the Bush–Cheney campaign’s use of the term Olympics was likely to confuse consumers into believing that the ad was endorsed or sponsored by the USOC, although it should be noted that the USOC did receive telephone calls from viewers who mistakenly assumed the USOC was endorsing the Bush–Cheney ticket (K. Maynard, personal communication, November 10, 2004). Moreover, from a practical standpoint, proving likelihood of confusion would require the USOC to commit a significant amount of time and resources to provide either consumer survey evidence or evidence of actual confusion to a judicially acceptable standard.

False Designation of Origin and False Descriptions

In addition to dealing with infringement claims of unregistered trademarks, Section 43(a) of the Lanham Act provides a cause of action for false designation of origin and false descriptions, which is premised on the concept of unfair competition. This section reads, in relevant part:

Any person who . . . uses in commerce any . . . false or misleading descrip- tion of fact, or false or misleading representation of fact, which (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act. (15 U.S.C. 1125[a][1])

The Lanham Act does not define the terms advertising or promotion. Nor is the Act’s legislative history helpful regarding the issue; it addresses only the require- ment that the advertising or promotion be “commercial” in nature (San Juan Star v. Casiano Comm., Inc., 2000, p. 91). The “commercial” requirement was inserted to ensure that section 43(a) does not infringe on free speech protected by the First Amendment.

As stated by the Fifth Circuit, in order for representations to constitute com- mercial advertising or promotion under this Section,

they must be (1) commercial speech; (2) by a defendant who is in commercial competition with plaintiff; (3) for the purpose of influencing consumers to buy defendant’s goods or services. While representations need not be made in a

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“classical advertising campaign,” but may consist instead of more informal types of “promotion,” the representations (4) must be disseminated sufficiently to the relevant purchasing public to constitute “advertising” or “promotion” within that industry. (Seven-Up Co. v. Coca-Cola Co., 1996, p. 1384)

Here again, the USOC and other sport organizations are faced with the threshold questions of whether or not the unauthorized use of its marks and symbols in politi- cal campaign advertising can be couched as “use in commerce,” the use of which could be proven to represent a false designation of origin or false description as well as proving likelihood of confusion; and whether the unauthorized use is likely to cause confusion as to affiliation or sponsorship.

In addition to the federal Lanham Act, sport organizations may look to state statutory or common laws in the event of unauthorized usage of their marks. Under state common law, trademarks are protected as part of the law of unfair competition. Statutory provisions on trademarks vary from state to state, but most reflect the evidentiary requirements and remedies of the Lanham Act, including commercial use and proof of likelihood of confusion.

Trademark Dilution

Another potential legal claim for the USOC, as well as other sport organizations, arises under the concept of trademark dilution. The Lanham Act, as amended in 1996, creates a civil cause of action for trademark dilution. This section states in pertinent part that the owner of a famous mark “shall be entitled . . . to an injunction against another person’s commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark” (15 U.S.C. § 1125[c][1], 2000).

Dilution can occur through both blurring and tarnishment. Blurring occurs when an unauthorized user diminishes the distinctive quality of a trademark. For example, the USOC recently used the threat of a lawsuit to stop the unauthorized use of the phrase Ferret Olympics (a competition among ferrets that originated in Atlanta in 1996 as a fund-raiser for a ferret shelter; “USOC forces,” 2005). Among the potential legal claims would be that the use of Ferret Olympics blurs the distinctive quality of the word Olympics. Tarnishment occurs when an infringer associates a mark with something unwholesome or somehow undermines the mark’s positive image, thereby reducing the value of the trademark to the original owner. For example, the USOC is currently engaged in litigation against a Jamaica-based online sports gambling company that uses the marks Olympic and www.thegreek.com (Olympic Sports Data Services Ltd. v. United States Olympic Committee, 2004). The USOC also claims, inter alia, that the unauthorized uses impermissibly tarnish the USOC’s famous Olympic marks by creating the false impression that the USOC approves of wagering on Olympic events.

The Lanham Act enumerates multiple factors a court may consider in deter- mining whether a mark is distinctive and famous. While there can be no debating the fact that the Olympic mark is distinctive and famous, the federal dilution provi- sion makes a specific exception for “non-commercial use of a mark” (15 U.S.C. § 1125[c][4][B]) as well as for “all forms of news and news commentary” (15 U.S.C. § 1125[c][4][C]). In applying this exemption for noncommercial use in cases involving political advertising, the courts have been vigilant to note the distinct differences between the purposes served by the remedies available for trademark

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infringement and those available for trademark dilution. For example, the district court in AFLAC observed that the “commercial and in commerce” provisions in §1125 denotes Congress’s authority under the Commerce Clause as a jurisdictional predicate rather than an attempt to limit the application of the Lanham Act to a narrow list of commercial activities (AFLAC, 2002, p. 694, citing United We Stand America, 1997). Unlike the trademark-infringement remedies, though, remedies for trademark dilution are unavailable if the defendant is engaging in a noncom- mercial use of the mark. The Ohio district court recognized that this creates an apparent inconsistency. For example, how can a mark be used in commerce but such use be noncommercial? Relying on the legislative history, the court observed that the language of the noncommercial use exemption is Congress’s rather inexact way of saying that the dilution provisions will not prohibit or threaten expression such as parody, satire, editorial, and other forms of expression that are not part of a commercial transaction (AFLAC, 2002). Based on this interpretation of §1125, the court dismissed AFLAC’s dilution claims and concluded that Hagan’s political advertisement was clearly noncommercial for purposes of the dilution exemption because it did more than propose a commercial transaction—it discussed public issues and challenged the qualifications of a political candidate.

A similar outcome was reached in MasterCard v. Nader (2004), even though MasterCard argued that Nader’s advertisement was commercial because it increased contributions to the Nader 2000 campaign committee. Even assuming the advertise- ment had generated greater contributions, the district court held that that would not be enough to deem the advertisement as “commercial” and outside the exemption. To so hold would render all political campaign speech as commercial speech since all political candidates collect contributions. Again, under current judicial interpre- tations of what constitutes “noncommercial” vis-à-vis political speech, the USOC would appear to have a weak argument on the grounds of a dilution claim.

The recent landmark Supreme Court decision interpreting dilution provides an additional hurdle. In Moseley v. Victoria’s Secret Catalogue (2003), which dealt with tarnishment, the Court stated that the standard for dilution requires proof that a new trademark actually causes dilution of the distinctive quality of a famous mark. Contrary to other lower courts’ holdings, it is now not enough to claim that a new trademark is merely likely to dilute a famous mark. In light of Moseley, it is now more difficult for owners of famous marks to prevent others in noncompetitive fields from adopting similar marks.

In addition to claims based on the federal dilution statute, the USOC could explore state antidilution law. As pointed out by Shakow (1998), many state anti- dilution statutes do not explicitly excuse noncommercial dilution of protected marks. Shakow also observed that, unlike traditional trademark law, under state antidilution statutes the consumer need not be confused about the mark’s origin or believe that the mark is used in some affiliation with the owner.

As Shakow (1998) suggests, “In reducing the commercial appeal of the mark, the infringer may not have confused the public, but he has certainly damaged the owner. This is clearly applicable to political candidates. Association with some political philosophies, when forced on a commercial actor, may well hurt the com- mercial prospects of the actor’s goods” (p. 208). Particularly in states in which a confusion requirement has not been judicially imposed into antidilution statutes, the USOC might have a viable avenue for pursuing a dilution claim.

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Misappropriation of Goodwill

Assuming arguendo that traditional trademark claims discussed previously would not provide the strongest avenues for legal recourse, one final avenue worth examining is the concept of misappropriation of goodwill. There is currently no federal cause of action for misappropriation of goodwill. Instead, this action is grounded in state common law. As suggested by Shakow (1998), the doctrine of misappropriation of goodwill affords trademark owners “an appropriate foundation on which to build a case against political infringers” (p. 209). Misappropriation occurs “when an unauthorized user uses a mark so as to benefit from the status or social image associations that a mark has developed” (Hansen & Walls, 1991). The misappropriation doctrine was first recognized by the U.S. Supreme Court in International News Service v. Associated Press (1918) in a case involving the theft of nontrademarkable “news” accounts. Although INS has arguably been overruled in subsequent Supreme Court cases (Compco Corp. v. Day-Brite Light- ing, Inc., 1964; Sears, Roebuck & Co. v. Stiffel Co., 1964), some courts, includ- ing the United States Court of Appeals for the 2nd Circuit in Standard & Poor’s Corp. v. Commodity Exchange, Inc. (1982), have continued to rely on INS where, despite the absence of traditional trademark law grounds, a “sense of fair play” and “respect for the [plaintiff’s] investment” do not provide a remedy (Shakow, 1998, p. 211).

In his analysis of 1996 presidential candidate Bob Dole’s unauthorized use of a “Just Don’t Do It” slogan, which traded off Nike’s trademarked ubiquitous “Just Do It” slogan, Shakow (1998) argues:

What makes the misappropriation doctrine so tempting in the case of politi- cal trademark infringement is that these trademarks . . . are phrases of such distinctiveness that they are actually trademarkable. As opposed to the rather amorphous “news” the AP sought to protect in INS, which was not copyright- able, “Just Do It” and the like are a step higher in the intellectual property hierarchy: they have been granted formal protection against competitors’ use under the Lanham Act (citation omitted). These slogans should have a greater claim to the shield of the misappropriation doctrine because of their heightened status. (p. 211)

As suggested previously, in some cases of unauthorized use of registered trademarks, a plaintiff may have a difficult if not impossible task of establishing the elements of an infringement claim, such as likelihood of confusion. Further- more, the use may fall into the category of noncommercial speech. However, as Shakow (1998) suggests, in situations where a trademark-infringement claim is not viable, the mark holder should still have some remedy that “protects the trademark’s goodwill and persona against theft” (p. 210). Thus, assuming that the Bush–Cheney campaign’s use of the term Olympics did not meet the threshold of a traditional trademark-infringement claim, the USOC, given the “status and social image associations” that it has built up in the term Olympics and its other marks and symbols, might have a viable state-law claim under the doctrine of misappro- priation of goodwill. Although this state-based approach may be less appealing to national sport organizations such as the USOC, it may provide fertile ground for state- and locally-based sport organizations.

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Restrictions in Political Advertising Assuming that the USOC and other sport intellectual property holders have limited remedies arising from OASA, the Lanham Act, state antidilution law, or common law misappropriation for the unauthorized use of their marks in political advertising campaigns, such rights holders may find some assistance in state or federal laws affecting campaign activities.

Currently, several legal restraints apply to political campaigns. These restraints tend to address three primary areas. The first area relates to the individual candidate who has been victimized by a false or misleading advertisement. In these cases, private defamation and invasion of privacy actions grounded in state law are avail- able in many states. The second area relates to restricting or minimizing financial contributions to political campaigns, particularly contributions from corporations. In this area, both state and federal governments have enacted legislation to regu- late campaign finance. A third area is emerging and is of particular relevance to the “Victory” ad used by the Bush–Cheney campaign in the 2004 election. Some states have enacted laws prohibiting unfair campaign practices and penalizing the use of false or misleading campaign advertising (Marshall, 2004). This latter area of restriction is explored in greater detail to determine whether the actions of the Bush–Cheney campaign would fall within the scope of these restrictions and whether the USOC could seek to enforce them.

Constitutional Considerations

Restraints on political activity or speech necessarily implicate the First Amend- ment guarantee of free speech. Political speech is entitled to the highest protection from government restriction. “The constitutional guarantee [of free expression] has its fullest and most urgent application precisely to the conduct of campaigns for political office” (Buckley v. Valeo, 1976, p. 45). The First Amendment embod- ies the principle that free expression is both vital in its own right and essential to the representative government. Political speech, even if erroneous or false, has at times been protected from government interference. The Supreme Court in New York Times v. Sullivan (1964) observed that “erroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive” (p. 271-72). Thus a government restraint on political speech, such as a state statute creating and permitting a remedy for defamation arising from a statement made by one political candidate about another candidate, will be subject to exacting scrutiny so as not to violate the First Amend- ment (McIntyre v. Ohio Elections Comm’n, 1995).

Commercial speech, as discussed previously, enjoys only limited constitutional protection. The protection for commercial speech flows more from the consumer’s right to hear about the information rather than the advertiser’s right to speak (Piety, 2005). The Court has held that the First Amendment only protects commercial speech that is truthful and not misleading (Central Hudson Gas & Electric Co. v. Public Service Commission of New York, 1980). While it has been suggested that political advertising should be treated as commercial speech for the purposes of regulating its content (Shakow, 1998), at present it is more likely that a court would categorize political advertising as political speech deserving of the highest protection rather than the more limited protection afforded commercial speech.

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Thus, in order for a state or the federal government to regulate political advertis- ing, the regulations must pass constitutional scrutiny. What level of scrutiny would apply to restrictions on political advertising has not been determined by the courts, thus, we must review other restrictions on political activities in order to predict or propose an appropriate test.

Private Defamation Actions for Political Candidates

As stated previously, state laws permitting private defamation actions for state- ments made by political candidates implicate the First Amendment because such actions involve highly protected political speech. Defamation actions are intended to provide a remedy for false statements that are injurious to a person’s reputation. Thus, we must determine what, if any, First Amendment protection is afforded political speech that is false.

In Boyce & Isley, PLLC v. Cooper (2002), the Court of Appeals of North Carolina upheld a state statute that made it illegal for “any person to publish . . . derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity.” (N.C. Gen. Stat. § 163.274[8], 2001). The plaintiff alleged that a political advertisement aired by the Democratic candidate for attorney general, Roy Cooper, violated this section and defamed Daniel Boyce, the Republican candidate for attorney general, as well as the members of his law firm, Boyce and Isley. Cooper argued the complaint should be dismissed for failing to state a valid claim for defamation because the defendants were public figures, thus even if the statements were defamatory, unless they were published with actual malice, the defendants could not recover as a matter of law (New York Times Co. v. Sullivan, 1964). While the North Carolina statute does require actual malice in the form of a knowingly false statement or reckless disregard for the truth or falsity of a statement, the North Carolina court of appeals observed that the actual malice standard is not an impenetrable shield for the benefit of those who engage in false speech about public figures (relying on McKimm v. Ohio Elections Comm’n, 2000). The court relied on the Supreme Court’s opinion in Garrison v. Louisiana (1964) in which the Court stated the following:

The First and Fourteenth Amendments embody our ‘profound national commit- ment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’ New York Times Co. v. Sullivan (citations omitted). The use of calculated falsehood, however, would put a different cast on the constitutional question. . . . At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. . . . That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government. Calculated falsehood falls into that class of utterances which are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . . Hence the knowingly false state-

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ment and the false statement made with reckless disregard of the truth do not enjoy constitutional protection. (p. 216)

Thus, individual defamation actions in response to false political speech have been permitted and deemed a constitutional restraint of free speech even in the political context.

Restrictions in Campaign Finance

Several states, as well as the federal government, have attempted to limit financial contributions to political campaigns, especially corporate contributions. Regulation of campaign speech at the federal level has been in the form of campaign finance restrictions in the Federal Election Campaign Act Amendments of 1974 (FECA) and the Bipartisan Campaign Reform Act of 2002 (BCRA). Both federal and state campaign reform efforts were challenged as a violation of free speech, and these cases primarily involved a question of the level of protection afforded corporate speech. Corporate speech is a recognized category of protected speech following the Supreme Court decision in First National Bank of Boston v. Bellotti (1978). However, the scope of that protection is much less than that afforded political or commercial speech. Specifically the Court distinguished between speech designed to influence consumers to purchase products (commercial speech) and speech by corporations designed to influence political and social outcomes (corporate speech). The scope of protection afforded corporate speech has been much debated in the literature and in the courts (Kerr, 2005) and is at the core of evaluating the constitutionality of most campaign finance reform legislation. Campaign finance restrictions raise unique legal questions because restricting the amount of money that can be raised or spent to express political ideas could interfere with speech and associational rights protected by the First Amendment (Holleman, 2005). Of course, the absence of restrictions could permit large campaign contributions to compromise the integrity of our democratic process, thus, these competing interests must be balanced.

The constitutionality of laws restricting campaign financing activities was first examined with the use of the framework established in Buckley v. Valeo (1976). The Buckley Court recognized two different categories of campaign finance restric- tions: restrictions on contributions and restrictions on spending. The Court held that restrictions on contributions are subject only to “closely drawn” scrutiny while restrictions on expenditures are subject to the higher standard of “exacting scrutiny.” The closely drawn scrutiny permits contribution limits to be imposed as long as they are closely drawn and advance a “sufficiently important” government interest. The Court concluded that the government’s interest in preventing corruption and the appearance of corruption that may result when large organizational contributions are used to promote individual candidates was sufficiently important to justify the burdens imposed on the First Amendment. However, the Court concluded that the spending limits in FECA could not survive exacting scrutiny because the goal of reducing wasteful campaign spending did not justify the burden on free speech.

Thus, Buckley established a balance by upholding limitations on how much money could be contributed to a campaign but striking down limitations on how much money could be spent directly on election-related speech (Holleman, 2005). The Buckley court does acknowledge that candidate advertising is subject to regu-

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lation and disclosure rules. For example, advertisements that expressly advocate election or defeat of a clearly identified candidate must comply with the limita- tions imposed by FECA. However, political advertisement such as issue ads could avoid campaign finance regulations so long as they did not use express words of advocacy for a specific candidate. This distinction between money contributed to a campaign and money spent on campaign or political issues created the loophole that permitted unlimited spending on political issue ads that Congress then attempted to close when it enacted the BCRA.

BCRA imposes limits on the amount and source of monies that may be spent on “federal election activity.” Federal election activity is defined as any advertise- ment that promotes or attacks a federal candidate, generic party campaign activ- ity, voter mobilization activity in general, and voter registration drives (BCRA, 2 U.S.C. § 431, 2002). BCRA does not place any restrictions on the content of a campaign advertisement. BCRA was challenged as an unconstitutional restraint of First Amendment free speech rights in McConnell v. Federal Election Commis- sion (2003). In McConnell, the Court addressed many aspects of the BCRA but it clearly affirmed BCRA’s “two principal, complementary features—Congress’s effort to plug the soft money loophole and its regulation of electioneering com- munications [campaign advertisements disguised as issue ads],” (McConnell, 2003, 124 S. Ct. at 627). The Court further stated that it is firmly embedded in our law that the First Amendment does not bar Congress (or by implication the state governments) from aggressively and creatively regulating corporate spending (and arguably by implication corporate speech) in candidate elections (Holleman, 2005). Thus, government restraints on corporate speech such as campaign finance restrictions have been upheld even when the speech is truthful. Arguably, campaign advertising restrictions prohibiting false or deceptive advertisements would also be a permissible restraint.

McConnell may be read to sanction a new deference to legislative judgments on the need for campaign finance reform and the proper means by which to achieve it (Hasen, 2004). It has been argued that McConnell “closely aligns with case law upholding regulation of those forms of corporate speech that are aimed at influencing the outcome of candidate campaigns” (Kerr, 2005, p. 64). Thus, the McConnell decision could be read broadly to sanction more extensive restrictions on campaign advertising in addition to campaign finance activities (Marshall, 2004). Such restrictions might include prohibiting false or misleading campaign advertising in federal elections whether sanctioned by corporate interests or an individual political candidate.

Thus, based on the Court’s treatment of defamation actions and campaign finance laws, some restraints on political activity are permitted without violating the First Amendment. However, what is not known is whether specific regulations on political advertising would be subject to “closely drawn” or “exacting” scrutiny. While there is no federal law specifically prohibiting false or misleading political advertising, a few states, and in particular the State of Washington, have enacted laws prohibiting false campaign advertising.

State Campaign Advertising Laws

Restrictions on campaign advertising raise even more difficult constitutional issues than those raised by restrictions on campaign finance, since restrictions on campaign

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advertising would be a much more direct restriction on expression involving both political and commercial speech. While the federal government has not enacted any direct restrictions on campaign advertising, the precedents addressing the constitutionality of private defamation actions and campaign finance reform help to illuminate how advertising restrictions may be analyzed by the Court.

Thus, we will consider the constitutionality of one state statute specifically limiting false political advertising. If such restrictions are deemed constitutional, they could serve as a means of protecting sports organizations from the unauthor- ized use of their names, marks, and logos in political campaigns and serve as a template for the federal government to follow in enacting federal restraints on such uses of sport organizations’ marks that could be deemed false or deceptive political advertising.

The State of Washington’s Fair Campaign Practices Act (2004) prohibiting false political advertising provides the following:

§ 42.17.530. False political advertising

(1) It is a violation of this chapter for a person to sponsor with actual malice:

(a) Political advertising that contains a false statement of material fact about a candidate for public office. However, this subsection (1)(a) does not apply to statements made by a candidate or the candidate’s agent about the candidate himself or herself; . . .

(c) Political advertising that makes either directly or indirectly, a false claim stating or implying the support or endorsement of any person or organization when in fact the candidate does not have such support or endorsement.

(2) Any violation of this section shall be proven by clear and convincing evidence.

Of particular interest is subsection (1)(c) prohibiting any political advertisement that makes a false claim of support or endorsement of any person or organization (emphasis added). As written, this state statute would appear to prohibit a candidate from running an advertisement that falsely states or implies that an organization has endorsed the candidate. However, it is unclear how broadly this language may be construed. For example, what if the claim of support were only inferred from the advertisement? The statute does not elaborate on what types of indirect claims may imply support or endorsement for a candidate. It may be difficult to determine whether the Bush–Cheney “Victory” advertisement would violate the Washington statute.

The “Victory” advertisement is political speech inasmuch as it is an adver- tisement created and aired by a candidate for political office. Like so many recent political ads, it contains little information about the candidate, but instead tends to convey appealing images designed to elicit a positive emotional response from those who were watching the Olympic Games. But does the advertisement contain any false statements? Recall the text of the advertisement:

In 1972, there were 40 democracies in the word. Today, 120. Freedom is spread- ing throughout the world like a sunrise. And this Olympics, there will be two

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more free nations, and two fewer terrorist regimes. With strength, resolve, and courage, democracy will triumph over terror. And, hope will defeat hatred.

Which statements must be false to trigger the protections of the statute? A literal reading of the statute indicates the prohibited false claim is the claim of support or endorsement of an organization. Thus, with regard to the “Victory” ad, clearly the USOC did not support or endorse Bush’s candidacy. In fact, to do so would have been a direct violation of OASA’s mandate that the USOC operate apolitically as discussed previously.

The next question is whether the advertisement either states or implies the USOC’s support or endorsement. If the intended implication of the “Victory” ad is for viewers to connect their positive emotional feelings toward the Olympics to this alleged spread of democracy, and attribute it in some measure to the Bush– Cheney campaign, it is possible that one could conclude that the advertisement implied Bush–Cheney had the support of the USOC. It is reasonable to believe that the advertisement would not have been as effective had it not mentioned the Olympics, not featured Olympic imagery, and not aired during the Olympic broadcasts. The viewer’s attitude toward the Olympics, presumably a very posi- tive attitude, is intended to be imputed to the Bush–Cheney campaign. Thus the Victory advertisement may fall within the type of advertising prohibited by the Washington statute.

While it certainly is not clear whether the “Victory” ad would violate the Washington statute since no actions have been filed or decided under this section, it is equally unclear whether the Washington statute or other similar statutes would be constitutional. Some restrictions on false political speech have been upheld as constitutional. However, one section of the Washington statute was held to be in violation of the First Amendment in State of Washington ex rel. Public Disclosure Comm’n. v. 119 Vote No! Committee (1998). In 119 Vote No!, the Washington Supreme Court struck down section (1)(a) of the statute. The state argued that section (1)(a) was a constitutional limitation since it prohibited only false statements of fact contained in political advertisements. The Washington Supreme Court rejected that argument as presupposing that the state possesses an independent right to determine what is or is not true in a political debate. The court instead reasoned that the First Amendment ensures that the public decides what is true and false and “the very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind” (p. 698).

Justice Talmadge vigorously disagreed with the majority analysis, however. Justice Talmadge’s concurrence relied on Garrison v. Louisiana’s (1964) unequivo- cal refusal to extend First Amendment protection to deliberate lies and calculated falsehoods. Justice Talmadge concluded that the State of Washington has a compel- ling interest in protecting voters from confusion and undue influence and therefore in penalizing deliberate lies in political campaigns. Some scholars believe the Washington Supreme Court decision that relied heavily on Buckley v. Valeo (1976) to conclude that issue advertising was beyond the reach of state regulation is no longer a viable interpretation of the Washington statute in light of the Supreme Court’s decision in McConnell v. Federal Election Commission (2003). The Supreme Court has now specifically held that Congress’s restraints on issue advertising in the BCRA did not violate the First Amendment (Holleman, 2005).

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It is also arguable that the Washington statute would be constitutional whether subject to “closely drawn” or “exacting” scrutiny. For example, the restriction in the statute that the statement must be false, made with actual malice, and proven by clear and convincing evidence may sufficiently safeguard against the fear of excessive government restrictions even if exacting scrutiny were applied as was seen in cases upholding private defamation actions. If the more deferential “closely drawn” scru- tiny were applied, the restrictions may also be narrowly tailored sufficiently to pass constitutional scrutiny since it applies only to false political advertising. In addition, if a statement is proven to be false and made with actual malice, the state’s interest in preventing corruption and promoting truthful and, not misleading, political advertis- ing could be deemed sufficiently important to justify the restraint on speech even if it is political speech. Nevertheless, with no United States Supreme Court decision specifically addressing the constitutionality of state governmental restraints on false political advertising by individual candidates, the usefulness to the USOC or other sport organizations of statutes such as the Washington statute is uncertain.

Recommendations for Restrictions on False and Misleading Campaign Advertising

During the 2004 presidential campaign, the candidates spent a record $575 mil- lion on television advertising (Pugel, Lewison, & Haugsvar, 2004). Internet and radio ads were also prolific. Between January and October 2004, the Bush cam- paign produced and aired approximately 70 different television advertisements, and John Kerry’s campaign produced and aired 94 advertisements. Of these 164 television ads, Bush used a sport or leisure theme or background images in 10 of his ads (ironically, one with John Kerry windsurfing). Kerry, on the other hand, used a sport or leisure theme in five of his television advertisements (“Presidential election ads,” 2005).

Sport or leisure images were used between 5 and 15% of the time. All but one of these advertisements used sport or leisure images only as a background or set- ting for the candidate or persons presenting the content of the advertising message (see Table 1). For example, an advertisement containing a message about national security or defense issues featured images of children playing soccer or a parent and child running in the park. John Kerry featured himself participating in a number of sporting activities such as windsurfing, hockey, and hunting.

Also, although no trademarks or company names were identifiable in most of these advertisements, there were a few exceptions. For example, during one Bush advertisement, a woman is driving and as the camera pans across the interior of the vehicle, the Ford brand is visible, as well as the Bose brand on the radio. During a John Kerry advertisement criticizing the Bush Administration’s handling of the Enron scandal, Enron is referred to by name, as well as with a visual of its corpo- rate “E” trademark. The Ford and Bose brands were only incidentally included in the Bush advertisement, perhaps even unintentionally. Kerry’s references to the Enron bankruptcy were directly connected to a larger public debate often present during the campaign.

The Bush–Cheney campaign’s “Victory” ad was, however, notably different. That advertisement opened with vintage film footage of an Olympic Opening Cer- emony, followed by images of elite swimmers with voice-over statements expressly

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referring to the Olympic Games. The sport image was no longer a background or setting for an advertisement containing political campaign information, and the mention of the Olympics was not incidental. Use of the Olympic trademark and image was the central theme of the advertisement. As such, it is at least pos- sible, if not likely, that viewers would perceive the Olympics (USOC or IOC) as endorsing or sponsoring a particular political candidate or point of view. Indeed, as noted infra, the USOC did receive phone calls from consumers raising precisely that concern.

Since this endorsement or sponsorship did not exist, then any viewer percep- tion of support would be false. But has he or she been misled or deceived by the advertisement? Assuming the use of the Olympic marks made the “Victory” ad more effective and influential over viewers, and viewers did perceive that the Olympics had endorsed or at least given permission to use its marks, it is arguable

Table 1 2004 Presidential Campaign Ads With Sport or Leisure Themes

Name of ad Sport or leisure activity depicted

IP used, depicted, or mentioned

Bush Ads

Thinking Mom Children playing basketball Ford and Bose

Windsurfing Kerry windsurfing

Victory Olympic games Olympic video clip

Changing World Cycling, hula hoop, running children, young girl riding a bike

Wacky Glimpse of old reel footage of bikes

Differences (Spanish/English)

Several physical activities

Forward Girl running on a hillside; older woman stretching in a stadium

Safer, Stronger (Spanish/English)

Man and girl running

Kerry Ads

Hoover Girl on swing Enron

Honor (Spanish) Kids playing soccer

Husband & Father Kerry playing hockey; kids playing soccer

Born in Colorado Kids playing soccer; Kerry playing hockey and hunting

Pilot Kids playing soccer; Kerry as pilot, playing hockey and hunting

Join the Fight for Our Environment

Wildlife

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that the viewers may have been deceived into believing the USOC and Olympic organizations supported the Bush candidacy. It is also possible, if not likely, that the Olympic image could be damaged because of the unauthorized and misleading use of its name in this advertisement. This is the exact concern Congress sought to protect through the enactment of the OASA.

Effective campaign advertising restrictions and expanded intellectual property protection for the USOC, as well as for other sport organizations, could be used to prohibit these activities. During the last two decades, political advertising surpassed traditional news sources as the most important source of voting information for the majority of voters (Weaver, 2002). As the role of advertising has become more important and a more powerful factor in voters’ decision, the need for campaign advertising restrictions has increased, as well. Assuming that the McConnell ratio- nale would permit expanding restrictions on campaign advertising, more states as well as the federal government may want to consider enacting additional legislation restricting false or misleading political campaign advertising that uses, without authorization, the trademarks of sport organizations. In addition, the OASA and the Lanham Act could be amended to permit infringement and misappropriation claims for any false or misleading use of protected marks or logos whether used commercially or in a noncommercial context. False political advertising is not entitled to any greater protection than commercial speech.

Given the increasing trend of using political campaign advertising that strate- gically targets sport (Bernstein, 2005), current law allows for a limitless number of scenarios in which politicians could use trademarks of sport organizations for the purposes of creating some implied association with or endorsement by the sport organization that could, at the very least, constitute a misappropriation of the sport organization’s goodwill. For instance, a candidate running for office in Massachusetts might create an advertisement showing footage of a pro football and baseball game with a voice-over that states, “The New England Patriots and Boston Red Sox are world champions. The State of Massachusetts needs another champion: a champion of the working men and women. . . .” Scenarios such as this, designed to trade on the appeal of professional and collegiate teams, could conceivably occur in every county, state, and federal election under the banner of political or noncommercial speech. Perhaps the time has come for Congress and the states to reconsider such potential unauthorized usage of sport organization trademarks and the goodwill that accompanies them.

Managerial Implications and Future Research Given the current deference afforded political campaign advertising, as well as the legal parameters of the OASA and the Lanham Act, this article has raised numer- ous hurdles for sport organizations seeking to legally prevent the unauthorized use of their marks and symbols in political campaign advertising. One of the primary hurdles arises from the fact that political advertising campaigns have not been deemed to rise to the level of commercial activity necessary to meet the threshold requirements of the OASA or Lanham Act (and its comparable state laws regarding trademark infringement). However, the trend toward political advertising campaigns as marketing campaigns designed to “sell a product” may begin to dent this pro- tective shield and, as a result, trigger the second evidentiary hurdle regarding the issue of consumer confusion.

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As discussed, there are several other potential avenues of legal recourse that, though untested to date, remain viable—and may become increasingly viable as political campaign advertising moves closer along the spectrum toward what could be deemed as commercial activity. The first is a dilution claim. Although the exception for noncommercial uses, as well as the recent Moseley v. Victoria’s Secret Catalogue (2003) decision, have made it tougher for national sport orga- nizations, including the USOC, to prove dilution under federal law, state-based sport organizations may be able to raise viable dilution claims under antidilution statutes, particularly in states where the confusion requirement is not judicially imposed and the language is more vague regarding the commercial use require- ment. As a result, sport managers and their legal counsel should be well versed in the language and judicial history of their respective state’s antidilution statute, as some states may provide an attractive avenue of legal resource. Of course, not all unauthorized uses may be deemed by a sport organization to be offensive; for instance, a political campaign ad that uses a local team name or trade may, on its face, be highly complimentary of the sport organization. However, the ad may not accurately reflect the views of that sport organization (or its ownership) or may have the unintended consequence of blurring or tarnishing that sport organization’s marks among those sport consumers who do not favor that particular politician (or the politician’s positions on various issues). Thus, by not reacting to this positive but unauthorized use, the sport organization may sustain consequences or blur- ring or tarnishment while also opening the doors to future uses that could be less desirable. Hence, sport organizations should consider, as a matter of practice, publicly voicing their opposition and potentially filing legal claims the first time such unauthorized use occurs.

A second untested but viable legal avenue worth considering is a misappropria- tion claim based on state law, particularly when the requirements or elements of traditional trademark-infringement claims cannot be met by the plaintiff. Although courts generally have not embraced misappropriation claims, a sport organization may be able to find an empathetic court willing to embrace a sense of “fair play” and respect for the organization’s investment. As discussed infra, Shakow (1998) has persuasively argued that the common law doctrine of misappropriation of trademark goodwill should afford trademark owners “an appropriate foundation on which to build a case against political infringers” (p. 209). Conversely, it is reasonable to conclude that any attempts by a state to establish a civil action for trademark owners against political infringers would still have to pass constitutional muster, as have political campaign-advertising and campaign-finance restrictions. As in the case of the state-based antidilution law, sport managers and their legal counsel should inves- tigate the language and judicial history of their respective state’s misappropriation law, as again, some states may provide an attractive avenue of legal recourse.

A third legal avenue is to pursue state-based false advertising claims. While at least one state has attempted to prohibit false or misleading campaign advertising, it is not clear what specific actions would violate the statute or whether the statute would survive a challenge to its constitutionality.

At present, there would appear to be no easily traveled avenues for the USOC, or other sport organizations, seeking to legally prevent the unauthorized use of their marks, symbols, and images in political campaign advertising, especially given the current position of such advertising along the spectrum of commercial and noncommercial activity. As political advertising campaigns become viewed

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as more about selling a product, the courts or the legislature may begin to chip away at the liberties afforded such advertising. Until such time, there are several measures that sport organizations may take to address what the authors suggest is likely to become increasingly common: politicians’ use of sport as a vehicle to deliver their campaign messages.

Reactive measures include the filing of cease-and-desist letters, accompanied by public statements denouncing the unauthorized use. This tactic, as shown by the USOC, did clarify the USOC’s position on the Bush–Cheney “Victory” ad and, although the Bush–Cheney camp chose not to comply, this tactic could have an impact on a more local level for politicians seeking to avoid any negative public relations backlash (especially if the sport organization positions the unauthorized use as “stealing,” as the USOC routinely does).

Another reactive measure would be to seek an injunction, assuming the sport organization was located in a jurisdiction with more favorable laws regarding its claims. Oftentimes, the mere filing of a lawsuit can be effective not only in ceasing the activity but also in serving notice to potential future infringers. For example, the USOC’s and National Collegiate Athletic Association’s proven willingness to resort to the courts (even with arguably weak cases) has served to ward off those who might consider such unauthorized activities in the future (McKelvey & Grady, 2004b; Moorman & Greenwell, 2005).

There are also several proactive measures that sport managers should consider in an effort to discourage or prevent the unauthorized use of their trademarks in political campaign advertising. One such measure would be to seek copyright pro- tection for their logos, artwork, and slogans. While a discussion of copyright law is not within the purview of this article, copyright law may provide sport organizations with additional protection against infringing uses of slogans and artwork. It is the concept of copyright that Shakow (1998) notes, infra, with regard to the validity of Nike’s misappropriation claim against the Dole “Just Don’t Do It” campaign. MasterCard also asserted claims based on copyright law, which ultimately were dismissed based on Nader’s fair use and parody defenses (MasterCard v. Nader, 2004); but since copyright infringement claims do not include the element of likeli- hood of confusion in the trademark-infringement claims, this is a viable claim for sport organizations to consider.

Another proactive measure is for sport organizations to expand their disclaimers in their marketing- and sponsorship-related communications (both in print and on their Web sites) to suggest that any commercial or noncommercial use of their trademarks is prohibited. Additionally, this language should be included in all future contracts with sponsors, licenses, vendors, and broadcasters. While the legal enforceability of such language may be debatable, the sport organization will at least begin to educate and serve notice to potential infringers. Such language could be incorporated into the restrictive language that currently exists on the backs of tickets to sporting events.

As the use of sport themes and images in political campaign advertising increases, and with the increased perception of political campaigns as marketing initiatives designed to sell a product, the authors contend that the legal debate will heighten to the point where government may wish to consider additional political campaign restrictions or a sport organization may decide to aggressively pursue its legal alternatives.

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