Latest / Bloomberg Law / Windmills Win Against Trump & The Minions on Olympic Ice

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Windmills Win Against Trump & The Minions on Olympic Ice · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:11
Speaker 1: Did I know windmills very much?
0:12
Speaker 2: I've studied it better than anybody else.
0:14
Speaker 1: You'll see these things all over the place.
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Speaker 2: They destroy everything.
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Speaker 3: They're horrible and the most expensive energy there is.
0:20
Speaker 1: They ruin the environment, They kill the birds, they kill
0:24
Speaker 1: the whales. Darling, I want to watch Donald Trump on
0:28
Speaker 1: television tonight, but the winds stop blowing and I can't watch.
0:33
Speaker 1: There's no electricity in the house.
0:34
Speaker 2: Darling.
0:35
Speaker 1: You want to see a bird cemetery, go under a
0:37
Speaker 1: windmill sometime you'll see the status.
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Speaker 4: President Donald Trump has been a vehement critic of wind
0:44
Speaker 4: power for years, deriding wind turbines as bird killing eye
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Speaker 4: sores and falsely claiming that they're the most expensive form
0:53
Speaker 4: of energy, cause cancer and drive whales crazy. And Trump
0:58
Speaker 4: has aggressively. So I ought to cripple the wind power
1:01
Speaker 4: industry in his second term. Within hours of returning to
1:05
Speaker 4: the White House in twenty twenty five, he issued a
1:08
Speaker 4: directive that froze new permitting for wind energy and ordered
1:12
Speaker 4: officials to consider terminating existing leases.
1:16
Speaker 1: So we're going to try and have a policy where
1:19
Speaker 1: no windmills are being built, and.
1:21
Speaker 4: So in December, the Department of the Interior ordered a
1:25
Speaker 4: pause to five multi billion dollar wind farm projects under construction,
1:30
Speaker 4: citing unspecified national security concerns. This Monday, for the fifth
1:36
Speaker 4: time in three weeks, a federal judge granted a preliminary
1:40
Speaker 4: injunction blocking the government's stop work order, saying the administration's
1:45
Speaker 4: decision was likely arbitrary and capricious. Now all five of
1:50
Speaker 4: the wind farms planned in federal waters have gotten the
1:53
Speaker 4: go ahead from the courts, although the Trump administration says
1:58
Speaker 4: it will keep fighting in court. My guest is an
2:01
Speaker 4: expert in environmental law, Pat Parento, a professor at the
2:05
Speaker 4: Vermont Law and Graduate School. Pat tell us what happened
2:08
Speaker 4: when five different judges took a look at the Interior
2:12
Speaker 4: Department stop work orders on these wind farm projects.
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Speaker 2: So Trump is oz for five basically in these cases.
2:22
Speaker 2: And the interesting thing is these are a variety of judges.
2:25
Speaker 2: Two of them were appointed by Trump and a third one,
2:29
Speaker 2: Royce Lambert, who just issued the final nail in the
2:32
Speaker 2: coffin for this stop work order. He was nominated by
2:36
Speaker 2: Ronald Reagan. So you know, we're not talking about woke judges.
2:41
Speaker 2: We're talking about conservative judges. All of them without exception,
2:46
Speaker 2: have said that this order, this stop work order on
2:50
Speaker 2: five offshore win projects, but which by the way, is
2:55
Speaker 2: six gigawatts. Okay, it's designed to serve more than two
2:59
Speaker 2: and half million homes and businesses all up and down
3:04
Speaker 2: the East Coast. So you know, this is a really
3:06
Speaker 2: really significant amount of electricity that this stop work order
3:11
Speaker 2: has tried to halt. So there's a preliminary injunction against
3:15
Speaker 2: all of the stop work orders at this point.
3:17
Speaker 4: The Trump administration, the Interior Department, has said that they're
3:21
Speaker 4: suspending these because of national security risks. It didn't disclose
3:26
Speaker 4: the security risk, but it claimed that the Department of
3:29
Speaker 4: Defense provided new classified information about advances and adversary technologies
3:35
Speaker 4: that could raise national security issues with offshore wind projects.
3:40
Speaker 4: I'm not sure what that means. And Judge Lamberth looked
3:45
Speaker 4: at those confidential documents and said he didn't get it.
3:49
Speaker 4: He didn't see the security risks right.
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Speaker 2: He said there was no proof of imminent threat to
3:54
Speaker 2: national security at all. On the other hand, he said
3:58
Speaker 2: that stopping the World Quarters was going to cost these
4:01
Speaker 2: companies two million dollars a day. One of the projects.
4:05
Speaker 2: Vineyard Win was ninety five percent complete, it's already sending
4:09
Speaker 2: some electricity to the grid. And two of the other projects,
4:14
Speaker 2: one of them was forty percent complete, the other one
4:16
Speaker 2: sixty five percent complete. So you got to remember, these
4:19
Speaker 2: are projects that have gone through an incredible amount of vetting,
4:24
Speaker 2: including Department of Defense vetting, including clearance from the Department
4:29
Speaker 2: of Defense. Of course, that was the Department of Defense
4:32
Speaker 2: before Trump. Okay, so when Trump now comes up with
4:36
Speaker 2: these secret classified documents demonstrating a threat to national security,
4:42
Speaker 2: and as you point out, Jadge Lambert looked at them
4:44
Speaker 2: and said, I don't see it, it does raise the
4:47
Speaker 2: serious question is this all just a pretext for Trump's
4:51
Speaker 2: you know, well known animosity, outright hostility to win power.
4:58
Speaker 2: And it all comes from the fact that he owns
5:00
Speaker 2: a golf course in Scotland and from his golf course
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Speaker 2: you can see wind farms off the coast of Scotland
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Speaker 2: generating all kinds of clean electricity. He doesn't like the
5:10
Speaker 2: look of them. He's come up with all kinds of
5:12
Speaker 2: reasons why they're bad. They cause cancer, No they don't.
5:15
Speaker 2: They kill a disproportionate number of birds. No they don't.
5:18
Speaker 2: They're unreliable. No they're not. They're too expensive. No they're not.
5:22
Speaker 2: So that's where we are.
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Speaker 4: I think the whales too, Now.
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Speaker 2: Are the whales? Don't forget the whales. Yeah, and all
5:28
Speaker 2: of this has been true. And you know, years and
5:30
Speaker 2: years not only of vetting in the agencies, but the
5:34
Speaker 2: whale issue in particular has been up and down the
5:37
Speaker 2: courts in the first circuit and the second circuit repeatedly,
5:41
Speaker 2: and none of the cases have found a serious threat
5:44
Speaker 2: to the whales. Believe me, if there was a serious
5:46
Speaker 2: threat to the whales, you'd be hearing about it from me.
5:50
Speaker 4: Is it the look of the windmills? Or is it
5:54
Speaker 4: that Trump wants to promote fossil fuels? And also, these
5:58
Speaker 4: wind energy projects were favorites former President Biden.
6:03
Speaker 2: Yeah, anything that Biden supported. He's going to kill every
6:07
Speaker 2: single thing he can find that is connected to Biden.
6:09
Speaker 2: You'll kill it. And you know, these arguments just fall apart.
6:13
Speaker 2: The studies that have been done by banks, serious people, right,
6:17
Speaker 2: all say that that wind and solar energy are the
6:21
Speaker 2: cheapest forms of energy to bring online quickly, not that
6:25
Speaker 2: they're going to solve all of our problems. They're not.
6:28
Speaker 2: You need base load electricity. But when it comes to
6:31
Speaker 2: really costing out, you know the life cycle costs of
6:35
Speaker 2: these various energy transmission options, and you look at everything
6:40
Speaker 2: from where do you get the materials, you know, whether
6:43
Speaker 2: it's fuel or other things to build these systems, and
6:47
Speaker 2: then how much does it cost to buy the fuel
6:50
Speaker 2: for these systems. Just think about it. The wind is free,
6:54
Speaker 2: the sun is free. Once you've installed these systems, these
6:58
Speaker 2: wind turbines offshore, you don't suffer the fluctuations of gas prices.
7:04
Speaker 2: You know, you don't have oil spills. You have whim spills,
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Speaker 2: but not oil spills. So the Sober Analysis of Renewables
7:13
Speaker 2: is saying, to meet the growing demand for electricity, including
7:17
Speaker 2: the huge one from AI data centers, you need more
7:21
Speaker 2: wind and solar. You need all kinds of forms of energy,
7:25
Speaker 2: but you in particular need projects that are almost complete
7:29
Speaker 2: and ready to go.
7:30
Speaker 4: The White House said they're going to continue fighting in court.
7:33
Speaker 4: Do you think that appellate courts might have a different viewpoint?
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Speaker 2: They might, You know, you always have to leave open
7:40
Speaker 2: the possibility that a different panel of judges would reach
7:45
Speaker 2: a different conclusion. But the point is that the evidence
7:49
Speaker 2: here of a national security threat consists of a document
7:55
Speaker 2: or documents, right, and so you don't have witnesses. Yeah,
7:59
Speaker 2: I mean some other judge might look at these documents
8:01
Speaker 2: and reach a different conclusion than Judge Lamberts did. But
8:04
Speaker 2: the rule is the trial court's decision to issue an
8:08
Speaker 2: injunction if it's reasonable, right, if it's based on an
8:12
Speaker 2: analysis of whether the government's stated reason for these stopwork
8:17
Speaker 2: orders passes muster. I don't think the courts of appeal
8:21
Speaker 2: are going to overturn these preliminary injunctions. The cases are
8:24
Speaker 2: preceding the proponents of these projects, primarily or Sted, the
8:29
Speaker 2: Denmark firm. They're bounded determined to work with the Trump
8:33
Speaker 2: administration to resolve whatever their questions are. The real question
8:37
Speaker 2: is with the signals coming from these wind turbines to
8:42
Speaker 2: the grid, would they interfere with military radar readings. That's
8:47
Speaker 2: what it comes down to. And the companies are saying, hey, look,
8:50
Speaker 2: if you need more safeguards and more mitigation of whatever
8:54
Speaker 2: risks you think there are, we're all about addressing that
8:58
Speaker 2: and fixing that. We have decades of experience with building
9:02
Speaker 2: these systems, running these systems in every country in which
9:06
Speaker 2: they're operating. They have the same set of radar and
9:10
Speaker 2: military needs and national security needs, and if there are
9:14
Speaker 2: issues out there, they can be dealt with.
9:18
Speaker 4: Pat So, despite the fact that the Trump administration is
9:22
Speaker 4: losing in court court battle after court battle over the
9:25
Speaker 4: wind farms, the shift in policy under Trump, for example,
9:31
Speaker 4: the so called One Big Beautiful Bill sped up the
9:34
Speaker 4: phase out of federal tax credits for offshore wind has
9:39
Speaker 4: this all escalated the risk of investing in offshore wind
9:44
Speaker 4: projects so that it's unlikely that you'll have new projects.
9:48
Speaker 4: The ones that are ongoing now they'll fight to keep,
9:51
Speaker 4: but new projects, I mean, I think the government's not
9:54
Speaker 4: even going to approve new projects.
9:56
Speaker 2: Yeah, yes, that is the bigger threat here, that they're
10:00
Speaker 2: going to discourage investment. And when you think about it,
10:03
Speaker 2: this is foreign investment. This isn't costing US companies or
10:07
Speaker 2: US taxpayers and nickel okay to build these things. This
10:10
Speaker 2: is free money that we're getting, and it's billions and
10:13
Speaker 2: billions of dollars. And oh, by the way, if you
10:16
Speaker 2: think about it, just simply delaying these five projects at
10:21
Speaker 2: two million dollars a day, who do you think is
10:24
Speaker 2: ultimately going to pay for that? The consumers of electricity,
10:29
Speaker 2: and so there are studies out there saying an extended
10:32
Speaker 2: delay like this could cost consumers billions of dollars because
10:36
Speaker 2: of the amount of electricity that these would generate. So
10:39
Speaker 2: the chilling effect on investment is the goal of this administration.
10:45
Speaker 2: I mean, they don't really care if they lose in court.
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Speaker 2: They'll just keep appealing if they can, all the way
10:50
Speaker 2: to the Supreme Court if they can. But their real
10:53
Speaker 2: goal is to stifle renewable energy and particularly win and
10:59
Speaker 2: I hate to say, but they're succeeding in that. You know,
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Speaker 2: that's not in the national interest. It's not in the
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Speaker 2: national security interest to cripple a major source of electricity
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Speaker 2: at a time when we're seeing escalating demands for it.
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Speaker 2: How does that make any sense at all?
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Speaker 4: Thanks so much, Pat. That's Professor Pat Parento of the
11:18
Speaker 4: Vermont Law and Graduate School. Coming up next on the
11:21
Speaker 4: Bloomberg Law Show. Those mischievous minions will be taking the
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Speaker 4: Olympic ice after all, and how the US Olympic Committee
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Speaker 4: jealously guards its intellectual property. I'm June Grasso. When you're
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Speaker 4: listening to Bloomberg, it was in doubt, but it now
12:07
Speaker 4: appears that those mischievous Minions will be taking the Olympic ice.
12:12
Speaker 4: After all, those cheeky characters have been causing a musical
12:16
Speaker 4: nightmare for Spanish figure skater Thomas Jurin's Guarino Sabte. He's
12:21
Speaker 4: been using a medley from the animated comedy film Minions
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Speaker 4: while dressed in their iconic blue overalls and yellow T shirt,
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Speaker 4: and his performances all sees it believing he'd gone through
12:33
Speaker 4: the proper protocols to obtain the necessary permissions. But then
12:37
Speaker 4: on Friday, NBC Universal told him he didn't have the
12:42
Speaker 4: clearance to use the music, So just days before the
12:45
Speaker 4: Olympics are to begin, he was scrambling to come up
12:49
Speaker 4: with a whole new show until Universal changed its mind.
12:54
Speaker 4: My guest is intellectual property litigator Terence Ross, a partner
12:58
Speaker 4: catin Yuchen Rosenmann. So Terry, this skater has been using
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Speaker 4: the Minions music during the whole season, and all of
13:07
Speaker 4: a sudden before the Olympics, NBC Universal tells him, No,
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Speaker 4: you don't have permission, you can't use it. It seems
13:15
Speaker 4: like having the Minions music in the Olympics would be
13:19
Speaker 4: a plus for the franchise and Universal.
13:22
Speaker 1: Yes, I agree with that completely. Apparently he had flown
13:26
Speaker 1: under the radar of the copyright folks at Universal for
13:32
Speaker 1: most of the season. But now that he's in the Olympics,
13:35
Speaker 1: and I guess NBC has got the coverage rights to
13:37
Speaker 1: the Olympics and they're owned by Universal. Probably somebody in
13:41
Speaker 1: the NBC Sports broadcasting called it to the attention to Universal,
13:45
Speaker 1: this guy's using the Minions music. Did you approve it?
13:48
Speaker 1: And Universal had not. The Spanish skater had never obtained
13:52
Speaker 1: advance approval. The music is copyrighted, as was the film,
13:57
Speaker 1: as all music is copyrighted. And to mindset, well, yeah,
14:01
Speaker 1: but it's the Olympics aren't taking place in the United States.
14:04
Speaker 1: They are taking place in Italy. And I says, come on, guy,
14:07
Speaker 1: in the modern world, we have international treaties where almost
14:11
Speaker 1: all the countries sign up to and allow enforcement of
14:15
Speaker 1: their copyrights in other countries through the simplicity of filing
14:20
Speaker 1: a couple pieces of paper with an international organization. So
14:24
Speaker 1: that's not going to excuse this guy. And at some
14:27
Speaker 1: point during the last week or so, it seemed like
14:30
Speaker 1: he was really not going to be able to perform
14:32
Speaker 1: his music.
14:33
Speaker 4: Well, this got a lot of attention, a lot of
14:35
Speaker 4: negative attention, I think for NBC Universal people were calling
14:39
Speaker 4: it Minion Gate, and there was a lot of sympathy
14:42
Speaker 4: on social media for the ice skater who now was
14:47
Speaker 4: faced with the prospect of changing his whole routine at
14:51
Speaker 4: the last minute. So perhaps Universal saw which way the
14:54
Speaker 4: wind was blowing and did a turnaround, allowing him to
14:59
Speaker 4: use the music after all.
15:01
Speaker 1: Ultimately, that's what the Spanish skater said. He thanked the
15:05
Speaker 1: Universal for letting him do it. He thanked all his
15:08
Speaker 1: fans for calling out the problem and getting Universal pay
15:12
Speaker 1: attention to it. You know, it just comes back to
15:15
Speaker 1: the point you made at the beginning. Why would you
15:18
Speaker 1: not want your music being used in a setting like
15:21
Speaker 1: that and getting all the international exposure. I guess Universal
15:25
Speaker 1: was taking the position that Minions and the various Minions
15:28
Speaker 1: movies are so well known that they don't need any
15:32
Speaker 1: more exposure from some ice skater in Spain, and what
15:36
Speaker 1: happens if he falls down jerd the music And you know,
15:39
Speaker 1: I couldn't see that kind of conversation going on within,
15:42
Speaker 1: you know, the Universal legal department, and so they sent
15:45
Speaker 1: out a cease and desist letter and thankfully Sanity prevailed
15:49
Speaker 1: and he's been authorized to use it. I was dying
15:52
Speaker 1: to see if he got some sort of written license agreement,
15:55
Speaker 1: but that hasn't shown up at the press. But yeah,
15:58
Speaker 1: he gets to use it now.
15:59
Speaker 3: And you know it's because if you're making a movie,
16:01
Speaker 3: if you're making a television show, there's literally a person
16:06
Speaker 3: who gets credit on the screen who's called the music supervisor,
16:10
Speaker 3: and they're not the people who make the.
16:12
Speaker 1: Music or write the score. Music supervisor references the person
16:16
Speaker 1: who's responsible for getting all the licenses for the music,
16:19
Speaker 1: and so it's literally a job in the movies and television,
16:23
Speaker 1: but apparently in ice dancing they haven't gotten that for yet.
16:27
Speaker 4: Copyright problems are pretty new in figure skating because for
16:32
Speaker 4: years music using lyrics wasn't allowed, and so classical music
16:37
Speaker 4: and other standard music that's part of the public domain
16:42
Speaker 4: was used by the skaters in their routines, and it
16:45
Speaker 4: was only in twenty fourteen that the International Skating Union
16:50
Speaker 4: relaxed its rules to allow words in music, and that
16:54
Speaker 4: leads to modern music being used and copyright problems. Three
16:58
Speaker 4: times US Champion Amber Glenn called her experience in getting
17:02
Speaker 4: music approved pure chaos, and as you said, it's so
17:07
Speaker 4: complicated because one piece of music can involve getting how
17:11
Speaker 4: many authorizations.
17:13
Speaker 1: You know, I feel sorry for them. We've had this
17:15
Speaker 1: discussion before in the context of documentaries, where a documentary
17:19
Speaker 1: filmmaker wants to use a short piece of music, they
17:22
Speaker 1: just want to be cautious. Arguably they could claim fair use,
17:26
Speaker 1: but they want to be cautious, so they ask for
17:27
Speaker 1: advanced approval. And you know, filmmakers are typically not lawyers,
17:31
Speaker 1: just as ice skaters typically aren't lawyers, and the bureaucratic
17:35
Speaker 1: process of trying to get it is very challenging. And
17:38
Speaker 1: then there's the problem at the other end. You jump
17:41
Speaker 1: through all the hoops, you ask for permission and they go,
17:43
Speaker 1: what you're not paying us for this? And then they
17:46
Speaker 1: try to collect, you know, a couple bucks out of you.
17:48
Speaker 1: And it's a challenging process. And I feel sorry for
17:51
Speaker 1: these ice dancers who put a beautiful performances quite frankly,
17:55
Speaker 1: and it's a really engaging sort of transformation of the
17:59
Speaker 1: music by combining it with ice dancing. They're not boyers.
18:04
Speaker 1: Got the Olympic video or somebody should figure out a
18:06
Speaker 1: way to get these guys some help.
18:08
Speaker 4: Well, apparently they've been trying but not succeeding because the
18:11
Speaker 4: International Skating Union and national governing bodies have apparently been
18:15
Speaker 4: spending the past four years trying to develop systems to
18:19
Speaker 4: help skaters obtain permission to use music. Sabat, for example,
18:25
Speaker 4: said he followed the prescribed procedure forgetting his music approved
18:28
Speaker 4: through a system called click Clear in August before the
18:32
Speaker 4: figure skating season began, So obviously there's a lot more
18:37
Speaker 4: work to be done there. Coming up next on the
18:40
Speaker 4: Bloomberg Last Show, I'll continue this conversation with intellectual property
18:44
Speaker 4: litigator Terrence Ross. No, you can't use onion rings to
18:49
Speaker 4: create your own version of the Olympic trademark, and what's
18:53
Speaker 4: called ambush marketing is also a no no. Swimmer Michael
18:58
Speaker 4: Phelps and Subway accused of that. I'm June Grosso and
19:02
Speaker 4: you're listening to Bloomberg. The twenty twenty six Winter Olympics,
19:31
Speaker 4: known as Milano Cortina twenty twenty six, begins on Friday
19:35
Speaker 4: in Italy, and the Olympic Committee will be on the
19:38
Speaker 4: lookout for the unauthorized commercial use of the many, many
19:43
Speaker 4: trademarks that it holds the exclusive rights to. We're talking
19:47
Speaker 4: about symbols like the five interlocking rings, the Olympic flame
19:51
Speaker 4: and torch, the Olympic flag, the motto, the anthem, the
19:56
Speaker 4: words Olympic, olympiad Team USA, OH for the gold Milano
20:01
Speaker 4: twenty twenty six, and on and on and on. I've
20:04
Speaker 4: been talking to intellectual property litigator Terrence Ross, a partner
20:08
Speaker 4: at Katain Muchen Rosenman. Terry, Let's turn now to the
20:12
Speaker 4: US Olympic Committee and the way it so carefully guards
20:16
Speaker 4: its intellectual property. So the use of Olympic trademarks, logos,
20:22
Speaker 4: images and symbols is prohibited without permission from the US
20:28
Speaker 4: Olympic Committee. I think it's easier to ask you whether
20:31
Speaker 4: anything related to the Olympics is not protected than to
20:37
Speaker 4: ask you what is protected.
20:39
Speaker 1: Well, it's a great legal question, and every couple of years,
20:43
Speaker 1: when we either have the Winter Olympics or Summer Olympics,
20:45
Speaker 1: the Olympic Committee literally sends out notices about six months
20:48
Speaker 1: ahead of time warning people, and they post things on
20:51
Speaker 1: their website and they are very aggressive in enforcing their
20:55
Speaker 1: intellectual property rights. But it's a completely different regime than
20:59
Speaker 1: what we usually talk about June. It's not under the
21:03
Speaker 1: Lanham Act, which is the name of the United States
21:06
Speaker 1: Trademark Laws. A number of years ago, Congress passed a
21:10
Speaker 1: law entitled the Ted Stevens Olympic and Amateur Sports Act.
21:16
Speaker 1: Now you may remember Ted Stevens was the longtime center
21:20
Speaker 1: from Alaska who got indicted for taking a bribe, was convicted,
21:25
Speaker 1: and he resigned from the Senate, and his conviction was
21:27
Speaker 1: overturned because the Department of Justice had committed a series
21:30
Speaker 1: of ethical blaxes had not provided him with exculptory information.
21:34
Speaker 1: So the poor guy had all that bad press and
21:37
Speaker 1: had to get out of the Senate because the deal
21:39
Speaker 1: James screwed up. But he got this piece of legislation
21:43
Speaker 1: named after him, and it is very unique. It's thirty
21:47
Speaker 1: six US Code, Section twenty two oh five oh six,
21:51
Speaker 1: and what it does is set up a special intellectual
21:55
Speaker 1: property rights regime for the United States Olympic Committee. And
21:59
Speaker 1: it says that at the five rings, you know, the
22:02
Speaker 1: international symbol of Olympics, the five rings, also the Pan
22:05
Speaker 1: American sports symbol, which I'm less familiar with the words Olympic, Olympiad, Paralympic, Paralympiad,
22:14
Speaker 1: pan American, parapan American, all those words are all exclusively
22:20
Speaker 1: within the use of the United States Olympic Committee and
22:24
Speaker 1: has nothing to do with the trademark laws. The Congress
22:27
Speaker 1: has simply taken this group of words and symbols and
22:30
Speaker 1: given them to the United States Olympic Committee. Incredibly unusual.
22:35
Speaker 1: It's the only ball like that I know of in
22:38
Speaker 1: the United States.
22:39
Speaker 4: I was looking at the guidelines that they have on
22:41
Speaker 4: a website entitled Commercial and Brand Usage Guidelines, and I
22:46
Speaker 4: found some of the trademarks really surprising. For example, they've
22:50
Speaker 4: trademarked the phrase let the Games begin. I mean that
22:54
Speaker 4: seems so generic. Let the Games begin is used in
22:59
Speaker 4: a lot of different contexts, not just in the Olympic realm.
23:04
Speaker 1: You're absolutely right, now, there is one distinction within the law.
23:07
Speaker 1: Specific words are set aside and you just can't use
23:11
Speaker 1: them period. Now there's a couple exceptions to that. If
23:14
Speaker 1: you're in that part of the state of Washington where
23:17
Speaker 1: the town of Olympia is, and I guess there's a
23:20
Speaker 1: set of mountains there, Cascades mountains, and you do business there,
23:24
Speaker 1: you can use the word Olympic or Olympia, and you
23:28
Speaker 1: can also use the word Olympics Olympia for a sportscaster
23:33
Speaker 1: talking about the Games in a non commercial context. So
23:36
Speaker 1: that's one part of the regime. The other part of
23:38
Speaker 1: the regime is there's this very broad provision that says,
23:42
Speaker 1: I'll just read it here. Any trademark, trade name, sign, symbol,
23:46
Speaker 1: or insignia falsely representing association with their authorization by the
23:50
Speaker 1: International Olympics Committee also violates the law. Now that's a
23:55
Speaker 1: little bit different, different from using the word Olympics or
23:57
Speaker 1: pan Olympics or para Olympics in those cases like you
24:01
Speaker 1: gave the example, let the Games begin, that's not one
24:04
Speaker 1: of the words exclusively consigned to the Olympic Committee. But
24:08
Speaker 1: they can still come after you under this other provision
24:11
Speaker 1: in that it suggests an association with the Olympics that
24:15
Speaker 1: is not true. It's harder to prove that.
24:17
Speaker 4: Though, Jarry, I've been reading about what the Olympic Committee
24:21
Speaker 4: characterized as ambush marketing. When there was a subway commercial
24:26
Speaker 4: with swimmer Michael Phelps swimming to quote where action is
24:31
Speaker 4: this winter Subway was not an Olympic sponsor. The Olympic
24:35
Speaker 4: Committee said it was an attempt to falsely associate subway
24:39
Speaker 4: with the Olympics, as a sponsor.
24:41
Speaker 1: And you remember in the run up to the Rio Games,
24:44
Speaker 1: the Summer Olympics that year, there were a lot of
24:47
Speaker 1: billboard advertising that sort of did the same sort of
24:50
Speaker 1: thing down in Rio, and the Olympic Committee went crazy
24:54
Speaker 1: over that. There was a case in the Supreme Court
24:57
Speaker 1: that considered this statute number of years ago, and the
25:01
Speaker 1: statute was challenged as being the violation the First Amendment
25:05
Speaker 1: and being unconstitutional, and the Supreme Court said, no, it's
25:08
Speaker 1: not as long as it has to do with commercial use.
25:12
Speaker 1: And you know, Michael Phelps doing a subway commercial would
25:16
Speaker 1: be a commercial use. They have an absolute right to
25:19
Speaker 1: these words. And the Supreme Court was, you know, looked
25:21
Speaker 1: at the legislative history and said, look, the whole reason
25:24
Speaker 1: we have this law is so that sponsors will pay
25:27
Speaker 1: money to the Olympic Committee to use these marks, and
25:31
Speaker 1: that will pay for our athletes to compete in a
25:34
Speaker 1: competitive manner abroad. And when other companies undercut that, you're
25:39
Speaker 1: really undercutting the United States Olympic effort, Supreme Court came
25:42
Speaker 1: right out and said that that particular suggestion let the
25:46
Speaker 1: Games begins would have to be tested under some sort
25:50
Speaker 1: of confusion standard. Now the Supreme Court in the same
25:53
Speaker 1: case called San Francisco Arts and Athletics versus the US
25:57
Speaker 1: Olympic Committee. The Supreme Court said, you got to look
26:00
Speaker 1: at the statue broadly because Congress had a broad protection
26:02
Speaker 1: and oh, by the way, we don't apply the traditional
26:06
Speaker 1: Lanham Act evaluation standard, which is likelihood of confusion. Now
26:11
Speaker 1: you sometimes see that still being argued, but I don't
26:14
Speaker 1: know how else do you evaluate. That's a great example
26:17
Speaker 1: you gave, and that would be very challenging. The Olympic
26:20
Speaker 1: Committee would probably go after somebody for that, but I
26:23
Speaker 1: think they might have trouble convincing a judge depending on
26:26
Speaker 1: the usage.
26:27
Speaker 4: So one of my favorite parts of the commercial use
26:31
Speaker 4: guidelines was please do not create your own version of
26:35
Speaker 4: any USOPC trademarks. For example, the Olympic symbol should not
26:40
Speaker 4: be simulated using pizzas, onion rings, tires, beverages, basketball, snowflakes,
26:45
Speaker 4: triangle smiley faces, fruits and vegetables, et cetera. I had
26:50
Speaker 4: to laugh that they actually put all that in their
26:53
Speaker 4: commercial guidelines on the website.
26:56
Speaker 1: It's just testament to the ingenuity of the American pop
27:00
Speaker 1: and their ability to circumvent the US laws. Arguably, the
27:05
Speaker 1: Olympic Committee is correct there because they have an absolute
27:08
Speaker 1: right to that five rings symbol and it's not constrained
27:13
Speaker 1: in any way by likelihood, confusion or anything else if
27:16
Speaker 1: it's being used in some sort of commercial A couple
27:18
Speaker 1: of years ago, there as a guide in Minnesota who
27:20
Speaker 1: started using hashtag and then various Olympic marks and claimed
27:25
Speaker 1: that the hashtag wasn't in the statute. You know that
27:29
Speaker 1: the statute it protects Olympics, it protects Olympiad. It doesn't
27:33
Speaker 1: protect hashtag Olympic, which I thought was very creative. Americans
27:37
Speaker 1: are just very ingenious when it comes to getting around laws.
27:41
Speaker 4: What about social media? These prohibitions are all about commercial uses.
27:47
Speaker 4: So is it only businesses and corporations that have to worry?
27:50
Speaker 4: I mean, what about these social media influencers? Do they
27:55
Speaker 4: have to worry as well?
27:56
Speaker 1: Absolutely? I mean, if they're doing it for a commercial purpose,
27:59
Speaker 1: they're in troup and they don't have a lot to
28:01
Speaker 1: stand up. And we've talked about influencers a lot over
28:05
Speaker 1: the years, and as you know, June, I still don't
28:07
Speaker 1: quite get.
28:08
Speaker 4: It, don't.
28:09
Speaker 1: But I'm not a teenage girl. And that could explain
28:11
Speaker 1: why but it seems to me from a distance that
28:14
Speaker 1: the core thing these influencer are doing is trying to
28:17
Speaker 1: commercialize their own personal brand and to sell things and
28:21
Speaker 1: to make money. So I don't see how an influencer
28:24
Speaker 1: can simply say, oh, I'm not doing it for commercial purpose.
28:27
Speaker 1: Oh heck, yes they are.
28:29
Speaker 4: Also, there could be another problem because the individual athletes
28:33
Speaker 4: have rights to their name, image, and likeness. So could
28:37
Speaker 4: you run into a problem there even if you're sort
28:40
Speaker 4: of congratulating them on their success.
28:43
Speaker 1: That gets very tricky. And I think in general, given
28:46
Speaker 1: the way the law is moving in what we call nil,
28:50
Speaker 1: I think you just are better off not saying it
28:53
Speaker 1: if it's in connection again with a commercial purpose. If
28:56
Speaker 1: all you want to do is throw out, you know,
28:58
Speaker 1: hashtag Lindsay Vaughn may be a bad choice now, But
29:02
Speaker 1: let's say before her injury, you wanted to say, hashtag
29:05
Speaker 1: Lindsay Vaughn, you know, congratulate her on winning. I think
29:08
Speaker 1: that would be perfectly fine. It's not for commercial purpose
29:11
Speaker 1: if you did that. And I hear she's still going
29:13
Speaker 1: to ski anyway, which is amazing. She's got it. I
29:16
Speaker 1: guess a stretched aco and I can't imagine a sport
29:20
Speaker 1: that would put more pressure on it then downhill I'm skiing,
29:23
Speaker 1: And I mean, who knows to her she wasn't a
29:27
Speaker 1: metal the most amazing thing of all time in Olympic history.
29:31
Speaker 4: We'll see. So, Terry, I wanted to ask you one
29:34
Speaker 4: thing I was wondering about. They do send out cease
29:37
Speaker 4: and desist letters, right, So does that give you time
29:41
Speaker 4: to correct your error if you've been using a trademark
29:46
Speaker 4: and so then you won't be sued by the Olympic Committee.
29:49
Speaker 1: First, let me agree that the Olympic Committee is perhaps
29:52
Speaker 1: the most aggressive trademark owner I've ever run across. I
29:56
Speaker 1: had a case about fifteen years ago where a local
29:59
Speaker 1: here DCE mortgage company was using the name Olympus Mortgage.
30:03
Speaker 1: They got a cease and desist letter and I told them, look,
30:07
Speaker 1: there's absolutely nothing you can do about this. Whatsoever. You
30:10
Speaker 1: write them back, apologize and say we'll change it, and
30:15
Speaker 1: you know they won't do anything more. They will want
30:16
Speaker 1: to see the change. They'll insist that you send them
30:19
Speaker 1: some evidence that you've changed. But it is very intimidating
30:24
Speaker 1: when your client gets a letter like that out of
30:26
Speaker 1: the blue, because nobody knows that this special law exists
30:31
Speaker 1: protecting the Olympic Committee.
30:33
Speaker 4: There's certainly been a lot of litigation in this area.
30:37
Speaker 4: Thanks so much, Terry. That's intellectual property litigator Terrence Ross
30:41
Speaker 4: of Catain Neuchen Rosenman. And that's it for this edition
30:44
Speaker 4: of the Bloomberg Law Show. Remember you can always get
30:47
Speaker 4: the latest legal news on our Bloomberg Law Podcast. You
30:50
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30:54
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Speaker 4: ten pm Wall Street Time. I'm June Grosso and you're
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