Today we have a guest post from Kei Ikuta of the firm Nagashima Ohno & Tsunematsu. Kei Ikuta is a Japanese litigation lawyer specialising mainly in employment law, competition law and sports law.

The Tokyo Organising Committee of the Olympic and Paralympic Games (“TOC”) have decided to withdraw its Olympic logo (picture on the right).

On 24 July 2015, the logo was announced as having beaten 104 other candidates’ designs to be the 2020 Olympic logo.  TOC, making the announcement on 1 September 2015, have advised that they would start a new competition to choose a new Olympic logo. 

On 31 July 2015, Olivier Debie, a Belgium designer and a founder of Studio Debie, sent letters to the International Olympic Committee (“IOC”) and the TOC notifying them that the Olympic logo infringed his copyright for the design of the Théâtre de Liège in Belgium published in 2013 (picture on the left). 

He asked them to stop using the Olympic logo.  The design has never been registered as a trademark.  After the IOC and the TOC clarified their positions that Debie’s argument was baseless, Debie brought a lawsuit against the IOC in the Belgium courts on 13 August 2015 seeking to refrain the IOC from using the Olympic logo.  Debie may have considered that the IOC had a principal right to use the Olympic logo and it was not necessary to take the TOC to the court together with the IOC.  The original design of the Olympic logo was modified due to the fact that a similar registered trademark (different from Debie’s design in question) was discovered during the course of the investigation process of registered trademarks.  This investigation was conducted jointly by the IOC and the TOC.

Kenjiro Sano, a Japanese designer who designed the Olympic logo, has consistently denied plagiarising from Debie’s design.  After Debie commenced the litigation, however, many people in Japan started to oppose to the use of the Olympic logo as the official trademark and as a consequence the TOC, after a consultation with Sano, reached the aforementioned conclusion.  This took into account the fact that the logo had lost the support and understanding from the Japanese citizens.  The TOC made it clear that this decision was not because it accepted Debie’s argument but because it aimed to successfully organise the Games with the understanding and support from the people in the host country.

Japan and Belgium are signatories to all of the principal international treaties regarding intellectual property such as the Paris Convention, the Berne Convention, the Madrid Agreement and the WTO TRIPs Agreement.  Many key aspects of intellectual property law are thus familiar to each other but nevertheless it is not easy to predict what the Belgium court would conclude in Debie’s case.

Aside from the discussion as to whether or not Sano relied on the Debie’s design and infringe it, there is the fact that many sponsors for the 2020 Tokyo Olympic and Paralympic Games had invested in various advertisements using the Olympic logo when the TOC made the decision.  The sponsors and Tokyo Metropolitan Government have now decided to retrieve posters and business cards using the logo and change TV commercials etc., which causes a substantial loss.  Therefore, it is expected that the relevant stakeholders will be engaged in the discussion as to who will bear the cost spent on the lost productions of the advertisements (It could have been worse if the Belgian designer had started to complain at a later time.).

While the TOC wants to avoid compensation to the sponsors, the sponsors may seek them to pay their costs.  It has been generally accepted that it cost huge amounts of money to check registered trademarks around the world and it is almost impossible to ensure that a potential design for an official sport event does not infringe any copyright around the globe.  In fact, 47 million yen (about £250,000) has been paid for the global registered trademark check and international registration of trademark in relation to the Olympic logo, which ended up as a waste of money.

Nevertheless, accusations of plagiarism in the graphic design industry are still common.  Under those circumstances, organisers for sport events and its sponsors should always bear in mind that incidents similar to this TOC’s case may happen again.  It is naturally expected that the organisers and sponsors will be more cautious in negotiating over the clause in their contract relating to compensation in the event that the official logo of an event is withdrawn after it is officially decided.

Kei Ikuta 15 September 2015