International Olympic Committee v. San Francisco Arts & Athletics

Decision Date27 January 1986
Docket Number84-2528,Nos. 84-1759,s. 84-1759
Citation789 F.2d 1319
PartiesINTERNATIONAL OLYMPIC COMMITTEE, a corporation organized and existing under the laws of Switzerland; United States Olympic Committee, a corporation organized and existing under the laws of the United States of America, Plaintiffs-Cross- Defendants-Appellees, v. SAN FRANCISCO ARTS & ATHLETICS, a California corporation, and Thomas P. Waddell, Defendants-Cross-Plaintiffs-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Before GOODWIN and WALLACE, Circuit Judges, and STEPHENS, District Judge. *

Upon petition for rehearing and suggestion for rehearing en banc, the panel has voted to amend its opinion entered herein January 27, 1986, 781 F.2d 733 (9th Cir.1986), as follows:

On page 737, column 1, line 11 from the bottom, insert footnote marker 1/ and the following text:

SFAA contends that our finding of no state action conflicts with Martin v. International Olympic Committee, 740 F.2d 670, 677 (9th Cir.1984). We disagree. The determination whether state action exists is entirely dependent on the unique facts of each case. Burton v. Wilmington Parking Authority, 365 U.S. 715, 726 [81 S.Ct. 856, 862, 6 L.Ed.2d 45] (1961). In Martin, the government involvement was significantly more extensive than that found in this case.

On page 738, column 1, renumber the footnote to 2/.

The full court was advised of the suggestion for rehearing en banc. An active judge called for a vote on whether to rehear the matter en banc. The request for en banc consideration failed to receive a favorable majority of the votes of the active judges.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

KOZINSKI, Circuit Judge, with whom PREGERSON and NORRIS, Circuit Judges join, dissenting.

This case was brought by the United States Olympic Committee (USOC) and others under the Amateur Sports Act of 1978 (the Amateur Act), 36 U.S.C. Secs. 371-396 (1982), to enjoin the use of the word "Olympic" by appellants, San Francisco Arts & Athletics (SFAA) in connection with an event to be known as the Gay Olympic Games. USOC is a private nonprofit corporation chartered by Congress, 36 U.S.C. Secs. 371, 377 (1982); SFAA is a non-profit corporation. The Gay Olympic Games SFAA intended to sponsor in 1982 (and again in 1986), were "designed to combat homophobia and to work for the health and tolerance of gay and lesbian persons." Pet. Reh. 2.

A panel of this court upheld a permanent injunction issued after summary judgment had been granted to USOC. International Olympic Committee v. San Francisco Arts & Athletics, 781 F.2d 733 (9th Cir.1986). For the reasons stated below, I find the panel's reasoning squarely at odds with controlling Supreme Court authority. Moreover, the result reached threatens a potentially serious and widespread infringement of personal liberties. I therefore would vacate the panel's opinion and set the case for rehearing en banc.

I.

A. As the panel interprets the Amateur Act, the USOC is given the exclusive right to use the word Olympic "for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition," 36 U.S.C. Sec. 380, whether undertaken for profit or for a non-profit purpose. The USOC may obtain an injunction against use of this term without showing likelihood of confusion and without overcoming the defenses normally available in trademark infringement actions under the Lanham Act. 781 F.2d at 736.

Interpreted in this fashion, the Amateur Act represents a sweeping exercise of sovereign power, implicating principles of individual liberty protected by our Constitution. By passing the Act, Congress extracted a word from the English language and gave it to a private party to use in connection with any commercial endeavor or public event. This raises serious first amendment concerns that the panel failed to address or acknowledge.

The word Olympic has a meaning unique within our language. It connotes open and intense competition among non-professional athletes, usually involving the best and most accomplished contestants. Thus, we have Special Olympics, Junior Olympics, Police Olympics, and Canine Olympics, normally involving competition among the best and finest within the denoted category. I have great difficulty with the idea that Congress can deny all of us that word, and the ideas it embodies, in connection with all public endeavors. As noted by Justice Harlan in Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 1788, 29 L.Ed. 284 (1971), "we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." The ideas embodied in the word Olympic can, of course, be expressed by other means, but only in a much clumsier fashion, without the same nuance of meaning. As Justice Harlan wrote in Cohen,

much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.

Id. at 26, 91 S.Ct. at 1788.

In organizing the Gay Olympic Games, the SFAA sought to " 'creat[e] a more realistic image of homosexual men and women in all societies' and to 'provid[e] more alternatives for homosexual men and women to move into the mainstreams of their respective societies.' " International Olympic Committee v. San Francisco Arts & Athletics, 219 U.S.P.Q. 982, 985 (N.D.Cal.1982), aff'd mem., 707 F.2d 517 (9th Cir.1983). The word Olympic was no doubt chosen to foster a wholesome, normal image of homosexuals. Denying SFAA use of the word thwarts that purpose. To say that the SFAA could have named its event "The Best and Most Accomplished Amateur Gay Athletes Competition" no more answers the first amendment concerns here than to suggest that Paul Robert Cohen could have worn a jacket saying "I Strongly Resent the Draft."

The Supreme Court has been extremely reluctant to approve restrictions against the use of particular words. See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977) (striking down a prohibition against posting "For Sale" and "Sold" signs on residential lawns). In the rare case when the Court has done so, it was only after the closest scrutiny and subject to the most careful restrictions. See, e.g., FCC v. Pacifica Foundation, 438 U.S. 726, 744-51, 98 S.Ct. 3026, 3037-41, 57 L.Ed.2d 1073 (1978) (FCC ban of patently offensive language justified because of special concerns pertaining to broadcasting). By contrast, the panel here dismisses SFAA's constitutional argument, simply noting that "the word 'Olympic' and its associated symbols and slogans are essentially property. Such property rights can be protected without violating the First Amendment." 781 F.2d at 737 (citing Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 573-77, 97 S.Ct. 2849, 2856-58, 53 L.Ed.2d 965 (1977); Hudgens v. NLRB, 424 U.S. 507, 518-21, 96 S.Ct. 1029, 1035-37, 47 L.Ed.2d 196 (1976)).

To say that the word Olympic is property begs the question. What appellants challenge is the power of Congress to privatize the word Olympic, rendering it unutterable by anyone else in connection with any product or public event, whether for profit or, as in this case, to promote a cause.

The rights conferred on the USOC by the Amateur Act are materially different from traditional intellectual property rights where a careful balance is struck between the interests of the property owner and those of the public. Trademarks, 1 copyrights 2 and patents 3 are subject to a variety of statutory and common law defenses, and they reserve only those rights necessary to protect the owner's economic interests. Zacchini, upon which the panel relied, is instructive. The Court there was careful to limit the relief afforded petitioner (the human cannonball) to assuring that he "reap[s] the reward of his endeavors." 433 U.S. at 573, 97 S.Ct. at 2856. The Court twice noted that "[p]etitioner does not seek to enjoin the broadcast of his performance; he simply wants to be paid for it." Id. at 578, 97 S.Ct. at 2859; see id. at 573-74, 97 S.Ct. at 2856.

By and large, rights in intellectual property are limited to uses that have been invented, created or developed by the owner. They are not a wholesale prohibition against all public uses but provide limited protection for that which "is the product of [the owner's] own talents and energy, the end result of much time, effort, and expense." Zacchini, 433 U.S. at 575, 97 S.Ct. at 2857. See Harper & Row Publishers, Inc. v. Nation Enterprises, --- U.S. ---, 105 S.Ct. 2218, 2223, 85 L.Ed.2d 588 (1985). So limited, rights in intellectual property are easily harmonized with the first amendment. See id. at 2228-31; Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir.1977) (copyright); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 206 (2d Cir.1979) (trademark); J. Gilson, Trademark Protection and Practice, Sec. 5.09 (1985); Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L.Rev. 1180 (1970).

However, when cut loose from their conceptual moorings, intellectual property rights can raise serious constitutional concerns. Here, the Act's ironclad prohibition against every commercial or...

To continue reading

Request your trial
14 cases
  • San Francisco Arts Athletics, Inc v. United States Olympic Committee
    • United States
    • U.S. Supreme Court
    • June 25, 1987
    ...how to enforce its exclusive right to use the word "Olympic" simply is not a governmental decision. Pp. 542-547. 781 F.2d 733 and 789 F.2d 1319 (9th Cir.1986), POWELL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and SCALIA, JJ., joined, and in Parts......
  • IgartÚa v. U.S.
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 4, 2011
  • Kelley Blue Book v. Car-Smarts, Inc.
    • United States
    • U.S. District Court — Central District of California
    • August 27, 1992
    ... ... § 1125(a) and 15 U.S.C. § 1114. International Order of Job's Daughters v. Lindeburg & Co., 633 ... of confusion." Academy of Motion Picture Arts v. Creative House Promotions, Inc., 728 F.Supp ... International Olympic Committee v. San Francisco Arts & Athletics, 781 ... ...
  • Computer Access Technology v. Catalyst Enterprises
    • United States
    • U.S. District Court — Northern District of California
    • February 13, 2003
    ...e.g., Disc Golf Ass'n, Inc. v. Champion Discs, Inc., 158 F.3d 1002, 1006 (9th Cir.1998); International Olympic Committee v. San Francisco Arts & Athletics, 789 F.2d 1319, 1322 n. 1 (9th Cir. 1986), amended by 789 F.2d 1319 (9th Cir.1986), aff'd sub nom, 483 U.S. 522, 107 S.Ct. 2971, 97 L.Ed......
  • Request a trial to view additional results
1 firm's commentaries
  • A Practitioner's Guide To Protecting Technology Assets
    • United States
    • Mondaq United States
    • June 19, 2012
    ...Corp. v. Anthony California, Inc., 439 F.3d 1365, 1370 (Fed.Cir.2006)). 15.Intn'l Olympic Comm. v. San Francisco Arts & Athletics, 789 F.2d 1319, 1322 n.3 (9th Cir 1986). A patent application must also satisfy various patent description requirements such as the best mode requirement tha......
3 books & journal articles
  • Freedom of speech and information privacy: the troubling implications of a right to stop people from speaking about you.
    • United States
    • Stanford Law Review Vol. 52 No. 5, May 2000
    • May 1, 2000
    ...against the publication of any portraiture of himself...."). (56.) See International Olympic Comm. v. San Francisco Arts & Athletics, 789 F.2d 1319, 1321 (9th Cir. 1986) (Kozinski, J., dissenting from denial of rehearing en banc) ("To say that the word Olympic is property begs the quest......
  • Motions
    • United States
    • James Publishing Practical Law Books Preparing for Trial in Federal Court
    • May 4, 2010
    ...are admissible in summary judgment proceedings as long as they meet certain requirements. FRE 702, 703; Bulthuis v. Rexall Corp. , 789 F.2d 1319 (9th Cir. 1985). First, the expert’s opinion in §7:100 Preparing for Trial in Federal Court 7- 418 the affidavit must be based on specific facts o......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Preparing for Trial in Federal Court
    • May 4, 2010
    ...WL 236676 (N.D. Miss.1992), Form 6-15 Builders Steel Co. v. C.I.R. , 179 F.2d 377 (8th Cir. 1950), §9:33.1 Bulthuis v. Rexall Corp. , 789 F.2d 1319 (9th Cir. 1985), §7:99 Bumpers v. Int’l Mill Serv. , 40 Fed. R. Serv. 2d 1334, 1335-36 (E.D.Pa. 1984), §§4:57, 4:62, 4:116 Bureerong v. Taveeuv......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT