Section 110 of the Amateur Sports Act of 1978 (Act) grants
respondent United States Olympic Committee (USOC) the right to
prohibit certain commercial and promotional uses of the word
"Olympic" and various Olympic symbols. Petitioner San Francisco
Arts & Athletics, Inc. (SFAA), a nonprofit California
corporation, promoted the "Gay Olympic Games," to be held in 1982,
by using those words on its letterheads and mailings, in local
newspapers, and on various merchandise sold to cover the costs of
the planned Games. The USOC informed the SFAA of the existence of
the Act and requested that it terminate use of the word "Olympic"
in its description of the planned Games. When the SFAA failed to do
so, the USOC brought suit in Federal District Court for injunctive
relief. The court granted the USOC summary judgment and a permanent
injunction. The Court of Appeals affirmed, holding that the Act
granted the USOC exclusive use of the word "Olympic" without
requiring the USOC to prove that the unauthorized use was confusing
and without regard to the defenses available to an entity sued for
a trademark violation under the Lanham Act. The court also found
that the USOC's property right in the word and its associated
symbols and slogans can be protected without violating the First
Amendment. The court did not reach the SFAA's claim that the USOC's
enforcement of its rights was discriminatory in violation of the
equal protection component of the Due Process Clause of the Fifth
Amendment, because it held that the USOC is not a governmental
actor to which the Constitution applies.
Held:
1. There is no merit to the SFAA's contention that § 110 grants
the USOC nothing more than a trademark in the word "Olympic," and
precludes its use by others only when it tends to cause confusion.
Nor is there any merit to the argument that § 110's reference to
Lanham Act remedies should be read as incorporating traditional
defenses as well. Section 110's language and legislative history
indicate that Congress intended to grant the USOC exclusive use of
the word "Olympic" without regard to whether use of the word tends
to cause confusion, and that § 110 does not incorporate defenses
available under the Lanham Act. Pp.
483 U. S.
528-530
Page 483 U. S. 523
2. Also without merit is the SFAA's argument that the word
"Olympic" is a generic word that constitutionally cannot gain
trademark protection under the Lanham Act, and that the First
Amendment prohibits Congress from granting a trademark in the word.
When a word acquires value as the result of organization and the
expenditure of labor, skill, and money by an entity, that entity
constitutionally may obtain a limited property right in the word.
Congress reasonably could conclude that the commercial and
promotional value of the word "Olympic" was the product of the
USOC's talents and energy, the end result of much time, effort, and
expense. In view of the history of the origins and associations of
the word "Olympic," Congress' decision to grant the USOC a limited
property right in the word falls within the scope of trademark law
protections, and thus within constitutional bounds. Pp.
483 U. S.
532-535.
3. The First Amendment does not prohibit Congress from granting
exclusive use of a word without requiring that the authorized user
prove that an unauthorized use is likely to cause confusion. The
SFAA claims that its use of the word "Olympic" was intended to
convey a political statement about the status of homosexuals in
society, and that § 110 may not suppress such speech. However, by
prohibiting the use of one word for particular purposes, neither
Congress nor the USOC has prohibited the SFAA from conveying its
message. Section 110's restrictions on expressive speech are
properly characterized as incidental to the primary congressional
purpose of encouraging and rewarding the USOC's activities.
Congress has a broad public interest in promoting, through the
USOC's activities, the participation of amateur athletes from the
United States in the Olympic Games. Even though § 110's protection
may exceed traditional rights of a trademark owner in certain
circumstances, the Act's application to commercial speech is not
broader than necessary to protect the legitimate congressional
interests, and therefore does not violate the First Amendment.
Congress reasonably could find that the use of the word by other
entities to promote an athletic event would directly impinge on the
USOC's legitimate right of exclusive use. The mere fact that the
SFAA claims an expressive, as opposed to a purely commercial,
purpose does not give it a First Amendment right to appropriate the
value which the USOC's efforts have given to the word. Pp.
483 U. S.
535-541.
4. The SFAA's claim that the USOC has enforced its § 110 rights
in a discriminatory manner in violation of the Fifth Amendment
fails, because the USOC is not a governmental actor to whom the
Fifth Amendment applies. The fact that Congress granted it a
corporate charter does not render the USOC a Government agent.
Moreover, Congress' intent to help the USOC obtain funding does not
change the analysis. Nor does the USOC perform functions that are
traditionally the exclusive
Page 483 U. S. 524
prerogative of the Federal Government. The USOC's choice of how
to enforce its exclusive right to use the word "Olympic" simply is
not a governmental decision. Pp.
483 U. S.
542-547.
781 F.2d 733 and 789 F.2d 1319, affirmed.
POWELL, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, STEVENS, and SCALIA, JJ., joined, and
in Parts I, II, and III of which BLACKMUN and O'CONNOR, JJ.,
joined. O'CONNOR, J., filed an opinion concurring in part and
dissenting in part, in which BLACKMUN, J., joined,
post,
p.
483 U. S. 548.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
483 U. S.
548.
JUSTICE POWELL delivered the opinion of the Court.
In this case, we consider the scope and constitutionality of a
provision of the Amateur Sports Act of 1978, 36 U.S.C. §§ 371-396,
that authorizes the United States Olympic Committee to prohibit
certain commercial and promotional uses of the word "Olympic."
Page 483 U. S. 525
I
Petitioner San Francisco Arts & Athletics, Inc. (SFAA), is a
nonprofit California corporation. [
Footnote 1] The SFAA originally sought to incorporate
under the name "Golden Gate Olympic Association," but was told by
the California Department of Corporations that the word "Olympic"
could not appear in a corporate title. App. 95. After its
incorporation in 1981, the SFAA nevertheless began to promote the
"Gay Olympic Games," using those words on its letterheads and
mailings and in local newspapers.
Ibid. The games were to
be a 9-day event to begin in August, 1982, in San Francisco,
California. The SFAA expected athletes from hundreds of cities in
this country and from cities all over the world.
Id. at
402. The Games were to open with a ceremony "which will rival the
traditional Olympic Games."
Id. at 354.
See id.
at 402, 406, 425. A relay of over 2,000 runners would carry a torch
from New York City across the country to Kezar Stadium in San
Francisco.
Id. at 98, 355, 357, 432. The final runner
would enter the stadium with the "Gay Olympic Torch" and light the
"Gay Olympic Flame."
Id. at 357. The ceremony would
continue with the athletes marching in uniform into the stadium
behind their respective city flags.
Id. at 354, 357, 402,
404, 414. Competition was to occur in 18 different contests, with
the winners receiving gold, silver, and bronze medals.
Id.
at 354-355, 359, 407, 410. To cover the cost of the planned Games,
the SFAA sold T-shirts, buttons, bumper stickers, and other
merchandise bearing the title "Gay Olympic Games."
Id. at
67, 94, 107, 113-114, 167, 360, 362, 427-428. [
Footnote 2]
Page 483 U. S. 526
Section 110 of the Amateur Sports Act (Act), 92 Stat. 3048, 36
U.S.C. § 380, grants respondent United States Olympic Committee
(USOC) [
Footnote 3] the right
to prohibit certain commercial and promotional uses of the word
"Olympic" and various Olympic symbols. [
Footnote 4] In late December, 1981, the executive
Page 483 U. S. 527
director of the USOC wrote to the SFAA, informing it of the
existence of the Amateur Sports Act, and requesting that the SFAA
immediately terminate use of the word "Olympic" in its description
of the planned Games. The SFAA at first agreed to substitute the
word "Athletic" for the word "Olympic," but, one month later,
resumed use of the term. The USOC became aware that the SFAA was
still advertising its Games as "Olympic" through a newspaper
article in May, 1982. In August, the USOC brought suit in the
Federal District Court for the Northern District of California to
enjoin the SFAA's use of the word "Olympic." The District Court
granted a temporary restraining order and then a preliminary
injunction. The Court of Appeals for the Ninth Circuit affirmed.
After further proceedings, the District Court granted the USOC
summary judgment and a permanent injunction.
The Court of Appeals affirmed the judgment of the District
Court. 781 F.2d 733 (1986). It found that the Act granted the USOC
exclusive use of the word "Olympic" without requiring the USOC to
prove that the unauthorized use was confusing and without regard to
the defenses available to an entity sued for a trademark violation
under the Lanham Act, 60 Stat. 427, as amended, 15 U.S.C. § 1051
et seq. It did not reach the SFAA's contention that the
USOC enforced its rights in a discriminatory manner, because the
court found that the USOC is not a state actor bound by the
constraints of the Constitution. The court also found that the
USOC's "property righ[t] [in the word 'Olympic' and its
associated
Page 483 U. S. 528
symbols and slogans] can be protected without violating the
First Amendment." 781 F.2d at 737. The court denied the SFAA's
petition for rehearing en banc. Three judges dissented, finding
that the panel's interpretation of the Act raised serious First
Amendment issues. 789 F.2d 1319, 1326 (1986).
We granted certiorari, 479 U.S. 913 (1986), to review the issues
of statutory and constitutional interpretation decided by the Court
of Appeals. We now affirm.
II
The SFAA contends that the Court of Appeals erred in
interpreting the Act as granting the USOC anything more than a
normal trademark in the word "Olympic." "[T]he
starting point
in every case involving construction of a statute is the language
itself.'" Kelly v. Robinson, 479 U. S.
36, 479 U. S. 43
(1986) (quoting Blue Chip Stamps v. Manor Drug Stores,
421 U. S. 723,
421 U. S. 756
(1975) (POWELL, J., concurring)). Section 110 of the Act
provides:
"Without the consent of the [USOC], any person who uses for the
purpose of trade, to induce the sale of any goods or services, or
to promote any theatrical exhibition, athletic performance, or
competition -- "
"
* * * *"
"(4) the words 'Olympic,' 'Olympiad,' 'Citius Altius Fortius,'
or any combination or simulation thereof tending to cause
confusion, to cause mistake, to deceive, or to falsely suggest a
connection with the [USOC] or any Olympic activity;"
"shall be subject to suit in a civil action by the [USOC] for
the remedies provided in the [Lanham] Act."
36 U.S.C. § 380(a). The SFAA argues that the clause "tending to
cause confusion" is properly read to apply to the word "Olympic."
But
Page 483 U. S. 529
because there is no comma after "thereof," the more natural
reading of the section is that "tending to cause confusion"
modifies only "any combination or simulation thereof."
Nevertheless, we do not regard this language as conclusive. We
therefore examine the legislative history of this section.
Before Congress passed § 110 of the Act, unauthorized use of the
word "Olympic" was punishable criminally. The relevant statute, in
force since 1950, did not require the use to be confusing. Instead,
it made it a crime for:
"
any person . . . other than [the USOC] . . . for the
purpose of trade, theatrical exhibition, athletic performance, and
competition or as an advertisement to induce the sale of any
article whatsoever or attendance at any theatrical exhibition,
athletic performance, and competition or for any business or
charitable purpose
to use . . . the words 'Olympic,'
'Olympiad,' or 'Citius Altius Fortius,' or any combination of these
words."
64 Stat. 901, as amended, 36 U.S.C. § 379 (1976 ed.) (emphasis
added). The House Judiciary Committee drafted the language of § 110
that was ultimately adopted. The Committee explained that the
previous "criminal penalty has been found to be unworkable, as it
requires the proof of a criminal intent." H.R.Rep. No. 95-1627, p.
15 (1978) (House Report). The changes from the criminal statute
"were made in response to a letter from the Patent and Trademark
Office of the Department of Commerce,"
ibid., that the
Committee appended to the end of its Report. This letter
explained:
"Section 110(a)(4) makes actionable not only use of the words
'Olympic.' 'Olympiad,' 'Citius Altius Fortius,' and any combination
thereof, but also any simulation or confusingly similar derivation
thereof tending to cause confusion, to cause mistake, to deceive,
or to falsely
Page 483 U. S. 530
suggest a connection with the [USOC] or any Olympic activity. .
. ."
"Section 110
carries forward some prohibitions from the
existing statute enacted in 1950, and adds some new
prohibitions, e.g.,
words described in section (a)(4)
tending to cause confusion, to cause mistake, or to deceive
with respect to the [USOC] or any Olympic activity."
Id. at 38 (emphasis added). This legislative history
demonstrates that Congress intended to provide the USOC with
exclusive control of the use of the word "Olympic" without regard
to whether an unauthorized use of the word tends to cause
confusion.
The SFAA further argues that the reference in § 110 to Lanham
Act
remedies should be read as incorporating the
traditional trademark
defenses as well.
See 15
U.S.C. § 1115(b). [
Footnote 5]
This argument ignores the clear language of the section. Also, this
shorthand reference to remedies replaced an earlier draft's
specific list of remedies typically available for trademark
infringement,
e.g., injunctive relief, recovery of
profits, damages, costs, and attorney's fees.
See Lanham
Act §§ 34, 35, 15 U.S.C. §§ 1116, 1117. This list contained no
reference to trademark defenses. 124 Cong.Rec. 12865, 12866 (1978)
(proposed § 110(c)). Moreover, the USOC already held a trademark in
the word "Olympic." App. 378-382. Under the SFAA's interpretation,
the Act would be largely superfluous. In sum, the language and
legislative history of § 110 indicate clearly that Congress
intended to grant the USOC exclusive use of the word "Olympic"
without regard to whether use of the word tends to cause confusion,
and that § 110 does not incorporate defenses available under the
Lanham Act.
Page 483 U. S. 531
III
This Court has recognized that
"[n]ational protection of trademarks is desirable . . . because
trademarks foster competition and the maintenance of quality by
securing to the producer the benefits of good reputation."
Park 'N Fly, Inc. v. Dollar Park and Fly, Inc.,
469 U. S. 189,
469 U. S. 198
(1985). In the Lanham Act, 15 U.S.C. § 1051
et seq.,
Congress established a system for protecting such trademarks.
Section 45 of the Lanham Act defines a trademark as
"any word, name, symbol, or device or any combination thereof
adopted and used by a manufacturer or merchant to identify and
distinguish his goods, including a unique product, from those
manufactured or sold by others."
15 U.S.C. § 1127 (1982 ed., Supp. III). Under § 32 of the Lanham
Act, the owner of a trademark is protected from unauthorized uses
that are "likely to cause confusion, or to cause mistake, or to
deceive." § 1114(1)(a). Section 33 of the Lanham Act grants several
statutory defenses to an alleged trademark infringer. § 1115.
The protection granted to the USOC's use of the Olympic words
and symbols differs from the normal trademark protection in two
respects: the USOC need not prove that a contested use is likely to
cause confusion, and an unauthorized user of the word does not have
available the normal statutory defenses. [
Footnote 6] The SFAA argues, in effect, that the
differences between the Lanham Act and § 110 are of constitutional
dimension. First, the SFAA contends that the word "Olympic" is a
generic [
Footnote 7] word that
could not gain trademark protection under the Lanham Act. The SFAA
argues that this
Page 483 U. S. 532
prohibition is constitutionally required, and thus that the
First Amendment prohibits Congress from granting a trademark in the
word "Olympic." Second, the SFAA argues that the First Amendment
prohibits Congress from granting exclusive use of a word absent a
requirement that the authorized user prove that an unauthorized use
is likely to cause confusion. We address these contentions in
turn.
A
This Court has recognized that words are not always fungible,
and that the suppression of particular words "run[s] a substantial
risk of suppressing ideas in the process."
Cohen v.
California, 403 U. S. 15,
403 U. S. 26
(1971). The SFAA argues that this principle prohibits Congress from
granting the USOC exclusive control of uses of the word "Olympic,"
a word that the SFAA views as generic. [
Footnote 8] Yet this recognition always has been balanced
against the principle that, when a word acquires value "as the
result of organization and the expenditure of labor, skill, and
money" by an entity, that entity constitutionally may obtain a
limited property right in the word.
International News Service
v. Associated Press, 248 U. S. 215,
248 U. S. 239
(1918).
See Trade-Mark Cases, 100 U. S.
82,
100 U. S. 92
(1879).
There is no need in this case to decide whether Congress ever
could grant a private entity exclusive use of a generic word.
Congress reasonably could conclude that the commercial
Page 483 U. S. 533
and promotional value of the word "Olympic" was the product of
the USOC's "own talents and energy, the end result of much time,
effort, and expense."
Zacchini v. Scripps-Howard Broadcasting
Co., 433 U. S. 562,
433 U. S. 575
(1977). The USOC, together with respondent International Olympic
Committee (IOC), have used the word "Olympic" at least since 1896,
when the modern Olympic Games began. App. 348. Baron Pierre de
Coubertin of France, acting pursuant to a government commission,
then proposed the revival of the ancient Olympic Games to promote
international understanding. D. Chester, The Olympic Games Handbook
13 (1975). De Coubertin sought to identify the "spirit" of the
ancient Olympic Games that had been corrupted by the influence of
money and politics.
See M. Finley & H. Pleket, The
Olympic Games: The First Thousand Years 4 (1976). [
Footnote 9] De Coubertin thus formed the IOC,
that has established elaborate rules and procedures for the conduct
of the modern Olympics.
See Olympic Charter, Rules 26-69
(1985). In addition, these rules direct every national committee to
protect the use of the Olympic flag, symbol, flame, and motto from
unauthorized use.
Id. Bye-laws to Rules 6 and 53.
[
Footnote 10] Under the
IOC
Page 483 U. S. 534
Charter, the USOC is the national olympic committee for the
United States, with the sole authority to represent the United
States at the Olympic Games. [
Footnote 11] Pursuant to this authority, the USOC has
used the Olympic words and symbols extensively in this country to
fulfill its object under the Olympic Charter of "ensur[ing] the
development and safeguarding of the Olympic Movement and sport."
Id., Rule 24.
The history of the origins and associations of the word
"Olympic" demonstrates the meritlessness of the SFAA's contention
that Congress simply plucked a generic word out of the English
vocabulary and granted its exclusive use to the USOC. Congress
reasonably could find that, since 1896, the word "Olympic" has
acquired what in trademark law is known as a secondary meaning --
it "has become distinctive of [the USOC's] goods in commerce."
Lanham Act, § 2(f), 15 U.S.C. § 1052(f).
See Park 'N Fly, Inc.
v. Dollar Park and Fly, Inc., 469 U.S. at
469 U. S. 194.
The right to adopt and use such a word "to distinguish the goods or
property [of] the person whose mark it is, to the exclusion of use
by all other persons, has been long recognized."
Trade-Mark
Cases, supra, at
100 U. S. 92.
Because Congress reasonably could conclude that the USOC has
distinguished the word "Olympic" through its own efforts, Congress'
decision to grant the USOC a limited property right in the word
"Olympic" falls
Page 483 U. S. 535
within the scope of trademark law protections, and thus
certainly within constitutional bounds.
B
Congress also acted reasonably when it concluded that the USOC
should not be required to prove that an unauthorized use of the
word "Olympic" is likely to confuse the public. [
Footnote 12] To the extent that § 110
applies to uses "for the purpose of trade [or] to induce the sale
of any goods or services," 36 U.S.C. § 380(a), its application is
to commercial speech. Commercial speech "receives a limited form of
First Amendment protection."
Posadas de Puerto Rico Assoc. v.
Tourism Company of Puerto Rico, 478 U.
S. 328,
478 U. S. 340
(1986);
Central Hudson Gas & Electric Corp. v. Public
Service Comm'n of New York, 447 U. S. 557,
447 U. S.
562-563 (1980). Section 110 also allows the USOC to
prohibit the use of "Olympic" for promotion of theatrical and
athletic events. Although many of these promotional uses will be
commercial speech, some uses may go beyond the "strictly business"
context.
See Friedman v. Rogers, 440 U. S.
1,
440 U. S. 11
(1979). In this case, the SFAA claims that its use of the word
"Olympic" was intended to convey a political statement about the
status of homosexuals in society. [
Footnote 13] Thus, the SFAA claims that, in this case, §
110 suppresses political speech.
Page 483 U. S. 536
By prohibiting the use of one word for particular purposes,
neither Congress nor the USOC has prohibited the SFAA from
conveying its message. The SFAA held its athletic event in its
planned format under the names "Gay Games I" and "Gay Games II" in
1982 and 1986, respectively.
See n 2,
supra. Nor is it clear that § 110
restricts purely expressive uses of the word "Olympic." [
Footnote 14] Section 110 restricts
only the manner in which the SFAA may convey its message. The
restrictions on expressive speech properly are characterized as
incidental to the primary congressional purpose of encouraging and
rewarding the USOC's activities. [
Footnote 15] The appropriate
Page 483 U. S. 537
inquiry is thus whether the incidental restrictions on First
Amendment freedoms are greater than necessary to further a
substantial governmental interest.
United States v.
O'Brien, 391 U. S. 367,
391 U. S. 377
(1968). [
Footnote 16]
One reason for Congress to grant the USOC exclusive control of
the word "Olympic," as with other trademarks, is to ensure that the
USOC receives the benefit of its own efforts, so that the USOC will
have an incentive to continue to produce a "quality product" that,
in turn, benefits the public.
See 1 J. McCarthy,
Trademarks and Unfair Competition § 2-1, pp. 44-47 (1984). But in
the special circumstance of the USOC, Congress has a broader public
interest in promoting, through the activities of the USOC, the
participation of amateur athletes from the United States in "the
great four-yearly sport festival, the Olympic Games." Olympic
Charter, Rule 1 (1985). The USOC's goal under the Olympic Charter,
Rule 24(B), is to further the Olympic movement, that has as its
aims: "to promote the development of those physical and moral
qualities which are the basis of sport"; "to educate young people
through sport in a spirit of better understanding between each
other and of friendship, thereby helping to build a better and more
peaceful world"; and "to spread the Olympic principles throughout
the world, thereby creating international goodwill."
Id.,
Rule 1.
See also id., Rule 11 (aims of the IOC). Congress'
interests in promoting the USOC's activities include these purposes
as well as those
Page 483 U. S. 538
specifically enumerated in the USOC's charter. [
Footnote 17] Section 110 directly advances
these governmental interests by supplying the USOC with the means
to raise money to support
Page 483 U. S. 539
the Olympics and encourages the USOC's activities by ensuring
that it will receive the benefits of its efforts.
The restrictions of § 110 are not broader than Congress
reasonably could have determined to be necessary to further these
interests. Section 110 primarily applies to all uses of the word
"Olympic" to induce the sale of goods or services. Although the
Lanham Act protects only against confusing uses, Congress' judgment
respecting a certain word is not so limited. Congress reasonably
could conclude that most commercial uses of the Olympic words and
symbols are likely to be confusing. It also could determine that
unauthorized uses, even if not confusing, nevertheless may harm the
USOC by lessening the distinctiveness and thus the commercial value
of the marks.
See Schechter, The Rational Basis of
Trademark Protection, 40 Harv.L.Rev. 813, 825 (1927) (one injury to
a trademark owner may be "the gradual whittling away or dispersion
of the identity and hold upon the public mind of the mark or name"
by nonconfusing uses).
In this case, the SFAA sought to sell T-shirts, buttons, bumper
stickers, and other items, all emblazoned with the title "Gay
Olympic Games." The possibility for confusion as to sponsorship is
obvious. Moreover, it is clear that the SFAA sought to exploit the
"commercial magnetism,"
see Mishawaka Rubber & Woolen Mfg.
Co. v. S. S. Kresge Co., 316 U. S. 203,
316 U. S. 205
(1942), of the word given value by the USOC. There is no question
that this unauthorized use could undercut the USOC's efforts to
use, and sell the right to use, the word in the future, since much
of the word's value comes from its limited use. Such an adverse
effect on the USOC's activities is directly contrary to Congress'
interest.
Page 483 U. S. 540
Even though this protection may exceed the traditional rights of
a trademark owner in certain circumstances, the application of the
Act to this commercial speech is not broader than necessary to
protect the legitimate congressional interest, and therefore does
not violate the First Amendment.
Section 110 also extends to promotional uses of the word
"Olympic," even if the promotion is not to induce the sale of
goods. Under § 110, the USOC may prohibit purely promotional uses
of the word only when the promotion relates to an athletic or
theatrical event. The USOC created the value of the word by using
it in connection with an athletic event. Congress reasonably could
find that use of the word by other entities to promote an athletic
event would directly impinge on the USOC's legitimate right of
exclusive use. The SFAA's proposed use of the word is an excellent
example. The "Gay Olympic Games" were to take place over a 9-day
period, and were to be held in different locations around the
world. They were to include a torch relay, a parade with uniformed
athletes of both sexes divided by city, an "Olympic anthem" and
"Olympic Committee," and the award of gold, silver, and bronze
medals, and were advertised under a logo of three overlapping
rings. All of these features directly parallel the modern-day
Olympics, not the Olympic Games that occurred in ancient Greece.
[
Footnote 18] The image the
SFAA
Page 483 U. S. 541
sought to invoke was exactly the image carefully cultivated by
the USOC. The SFAA's expressive use of the word cannot be divorced
from the value the USOC's efforts have given to it. The mere fact
that the SFAA claims an expressive, as opposed to a purely
commercial, purpose does not give it a First Amendment right to
"appropriat[e] to itself the harvest of those who have sown."
International News Service v. Associated Press, 248 U.S.
at
248 U. S.
239-240. [
Footnote
19] The USOC's right to prohibit use of the word "Olympic" in
the promotion of athletic events is at the core of its legitimate
property right. [
Footnote
20]
Page 483 U. S. 542
IV
The SFAA argues that, even if the exclusive use granted by § 110
does not violate the First Amendment, the USOC's enforcement of
that right is discriminatory in violation of the Fifth Amendment.
[
Footnote 21] The
fundamental inquiry is whether the USOC is a governmental actor to
whom the prohibitions of the Constitution apply. [
Footnote 22] The USOC is a "private
corporatio[n]
Page 483 U. S. 543
established under Federal law." 36 U.S.C. § 1101(46). [
Footnote 23] In the Act, Congress
granted the USOC a corporate charter, § 371, imposed certain
requirements on the USOC, [
Footnote 24] and provided for some USOC funding through
exclusive use of the Olympic words and symbols, § 380, and through
direct grants. [
Footnote
25]
The fact that Congress granted it a corporate charter does not
render the USOC a Government agent. All corporations
Page 483 U. S. 544
act under charters granted by a government, usually by a State.
They do not thereby lose their essentially private character. Even
extensive regulation by the government does not transform the
actions of the regulated entity into those of the government.
See Jackson v. Metropolitan Edison Co., 419 U.
S. 345 (1974). Nor is the fact that Congress has granted
the USOC exclusive use of the word "Olympic" dispositive. All
enforceable rights in trademarks are created by some governmental
act, usually pursuant to a statute or the common law. The actions
of the trademark owners nevertheless remain private. Moreover, the
intent on the part of Congress to help the USOC obtain funding does
not change the analysis. The Government may subsidize private
entities without assuming constitutional responsibility for their
actions.
Blum v. Yaretsky, 457 U.
S. 991,
457 U. S.
1011 (1982);
Rendell-Baker v. Kohn,
457 U. S. 830,
457 U. S. 840
(1982).
This Court also has found action to be governmental action when
the challenged entity performs functions that have been
"
traditionally the exclusive prerogative'" of the
Federal Government. Id. at 457 U. S. 842
(quoting Jackson v. Metropolitan Edison Co., supra, at
419 U. S. 353;
quoted in Blum v. Yaretsky, supra, at 457 U. S.
1011) (emphasis added by the Rendell-Baker Court).
Certainly the activities performed by the USOC serve a national
interest, as its objects and purposes of incorporation indicate.
See n 17,
supra. The fact "[t]hat a private entity performs a
function which serves the public does not make its acts
[governmental] action." Rendell-Baker v. Kohn, supra, at
457 U. S. 842.
The Amateur Sports Act was enacted "to correct the disorganization
and the serious factional disputes that seemed to plague amateur
sports in the United States." House Report at 8. See Oldfield
v. Athletic Congress, 779 F.2d 505 (CA9 1985) (citing S.Rep.
No. 95-770, pp. 2-3 (1978)). The Act merely authorized the
Page 483 U. S. 545
USOC to coordinate activities that always have been performed by
private entities. [
Footnote
26] Neither the conduct nor the coordination of amateur sports
has been a traditional governmental function. [
Footnote 27]
Page 483 U. S. 546
Most fundamentally, this Court has held that a government
"normally can be held responsible for a private decision only
when it has exercised coercive power or has provided such
significant encouragement, either overt or covert, that the choice
must in law be deemed to be that of the [government]."
Blum v. Yaretsky, supra, at
457 U. S.
1004;
Rendell-Baker v. Kohn, supra, at
457 U. S. 840.
See Flagg Bros., Inc. v. Brooks, 436 U.
S. 149,
436 U. S. 166
(1978);
Jackson v. Metropolitan Edison Co., supra, at
419 U. S. 357;
Moose Lodge No. 107 v. Irvis, 407 U.
S. 163,
407 U. S. 173
(1972);
Adickes v. S. H. Kress & Co., 398 U.
S. 144,
Page 483 U. S. 547
170 (1970). The USOC's choice of how to enforce its exclusive
right to use the word "Olympic" simply is not a governmental
decision. [
Footnote 28]
There is no evidence that the Federal Government coerced or
encouraged the USOC in the exercise of its right. At most, the
Federal Government, by failing to supervise the USOC's use of its
rights, can be said to exercise "[m]ere approval of or acquiescence
in the initiatives" of the USOC.
Blum v. Yaretsky, 457
U.S. at
457 U. S.
1004-1005. This is not enough to make the USOC's actions
those of the Government.
Ibid. See Flagg Bros., Inc.
v. Brooks, supra, at
436 U. S.
164-165;
Jackson v. Metropolitan Eddison Co.,
419 U.S. at
419 U. S. 357.
[
Footnote 29] Because the
USOC is not a governmental actor, the SFAA's claim that the USOC
has enforced its rights in a discriminatory manner must fail.
[
Footnote 30]
Page 483 U. S. 548
V
Accordingly, we affirm the judgment of the Court of Appeals for
the Ninth Circuit.
It is so ordered.
[
Footnote 1]
The SFAA's president, Dr. Thomas F. Waddell, is also a
petitioner.
[
Footnote 2]
The 1982 athletic event ultimately was held under the name "Gay
Games I." App. 473. A total of 1,300 men and women from 12
countries, 27 States, and 179 cities participated.
Id. at
475. The "Gay Games II" were held in 1986, with approximately 3,400
athletes participating from 17 countries. Brief for Respondents 8.
The 1990 "Gay Games" are scheduled to occur in Vancouver, B.C.
Ibid.
[
Footnote 3]
The International Olympic Committee is also a respondent.
[
Footnote 4]
Section 110 of the Act, as set forth in 36 U.S.C. § 380,
provides:
"Without the consent of the [USOC], any person who uses for the
purpose of trade, to induce the sale of any goods or services, or
to promote any theatrical exhibition, athletic performance, or
competition -- "
"(1) the symbol of the International Olympic Committee,
consisting of 5 interlocking rings;"
"(2) the emblem of the [USOC], consisting of an escutcheon
having a blue chief and vertically extending red and white bars on
the base with 5 interlocking rings displayed on the chief;"
"(3) any trademark, trade name, sign, symbol, or insignia
falsely representing association with, or authorization by, the
International Olympic Committee or the [USOC]; or"
"(4) the words 'Olympic,' 'Olympiad,' 'Citius Altius Fortius,'
or any combination or simulation thereof tending to cause
confusion, to cause mistake, to deceive, or to falsely suggest a
connection with the [USOC] or any Olympic activity;"
"shall be subject to suit in a civil action by the [USOC] for
the remedies provided in the Act of July 5, 1946 (60 Stat. 427;
popularly known as the Trademark Act of 1946 [Lanham Act]) [15
U.S.C. § 1051
et seq.]. However, any person who actually
used the emblem in subsection (a)(2) of this section, or the words,
or any combination thereof, in subsection (a)(4) of this section
for any lawful purpose prior to September 21, 1950, shall not be
prohibited by this section from continuing such lawful use for the
same purpose and for the same goods or services. In addition, any
person who actually used, or whose assignor actually used, any
other trademark, trade name, sign, symbol, or insignia described in
subsections (a)(3) and (4) of this section for any lawful purpose
prior to September 21, 1950, shall not be prohibited by this
section from continuing such lawful use for the same purpose and
for the same goods or services."
"(b) The [USOC] may authorize contributors and suppliers of
goods or services to use the trade name of the [USOC] as well as
any trademark, symbol, insignia, or emblem of the International
Olympic Committee or of the [USOC] in advertising that the
contributions, goods, or services were donated, supplied, or
furnished to or for the use of, approved, selected, or used by the
[USOC] or United States Olympic or Pan-American team or team
members."
"(c) The [USOC] shall have exclusive right to use the name
'United States Olympic Committee;' the symbol described in
subsection (a)(1) of this section; the emblem described in
subsection (a)(2) of this section; and the words 'Olympic,'
'Olympiad,' 'Citius Altius Fortius,' or any combination thereof
subject to the preexisting rights described in subsection (a) of
this section."
[
Footnote 5]
Specifically, the SFAA argues that the USOC should not be able
to prohibit its use of the word "Olympic," because its use "is
descriptive of and used fairly and in good faith only to describe
to users the goods or services." 15 U.S.C. § 1115(b)(4).
[
Footnote 6]
The user may, however, raise traditional equitable defenses,
such as laches.
See Brief for Respondents 20, n. 17.
[
Footnote 7]
A common descriptive name of a product or service is generic.
Because a generic name by definition does not
distinguish
the identity of a particular product, it cannot be registered as a
trademark under the Lanham Act.
See §§ 2, 14(c), 15 U.S.C.
§§1052, 1064(c).
See also 1 J. McCarthy, Trademarks and
Unfair Competition § 12:1, p. 520 (1984).
[
Footnote 8]
This grant by statute of exclusive use of distinctive words and
symbols by Congress is not unique. Violation of some of these
statutes may result in criminal penalties.
See, e.g., 18
U.S.C. § 705 (veterans' organizations); § 706 (American National
Red Cross); § 707 (4-H Club); § 711 ("Smokey Bear"); § 711a
("Woodsy Owl").
See also FTC v. A. P. W. Paper Co.,
328 U. S. 193
(1946) (reviewing application of Red Cross statute). Others, like
the USOC statute, provide for civil enforcement.
See,
e.g., 36 U.S.C. § 18c (Daughters of the American Revolution);
§ 27 (Boy Scouts); § 36 (Girl Scouts); § 1086 (Little League
Baseball); § 3305 (1982 ed., Supp. III) (American National Theater
and Academy).
[
Footnote 9]
The ancient Olympic Games were held from 776 B.C. until A.D.
393, when they were abolished by the Roman Emperor Theodosius I.
The Olympic Games were the most important in a "circuit" of
sporting festivals. The "circuit" also included the Pythian Games
at Delphi, the Nemean Games at Nemea, and the Isthmian Games at
Corinth. As these sporting festivals grew in importance, athletes
turned from amateurs to true professionals, training all year and
receiving substantial gifts and money from individuals and from
their home cities.
See M. Finley & H. Pleket, The
Olympic Games: The First Thousand Years 68-82 (1976); 25
Encyc.Brit.198 (15th ed.1984).
[
Footnote 10]
The Olympic flag was presented by Baron De Coubertin at the
Congress of Paris in 1914. It has a white background with five
interlocking rings in the center. The rings, in the colors blue,
yellow, black, green, and red, in that order,
"symbolize the union of the five continents and the meeting of
athletes from all over the world at the Olympic Games in a spirit
of fair and frank competition and good friendship, the ideal
preached by Baron de Coubertin."
Olympic Charter, Rule 6 (1985). The Olympic rings alone are the
Olympic symbol.
Ibid. The Olympic flame is formally lit in
Olympia under the auspices of the IOC. The Olympic motto is
"Citius, Altius, Fortius," meaning "Faster, Higher, Stronger," and
"expresses the aspirations of the Olympic Movement."
Ibid.
The motto originated at an international conference on the
principles of amateurism in sports organized by De Coubertin and
held in 1894 at the Sorbonne in Paris. A French delegate, Pere
Henri-Martin Didon suggested as a motto the words engraved on the
entrance to his lycee (school), Albert le Grand. Shortly
thereafter, De Coubertin founded the IOC, which adopted this motto.
A. Guttmann, The Games Must Go On 13-14 (1984).
[
Footnote 11]
The USOC was formally organized in 1921, replacing the more
informally organized American Olympic Committee. The USOC received
its first corporate charter in 1950.
[
Footnote 12]
To the extent that § 110 regulates confusing uses, it is within
normal trademark bounds. The Government constitutionally may
regulate "deceptive or misleading" commercial speech.
Virginia
Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc.,
425 U. S. 748,
425 U. S. 771
(1976);
Friedman v. Rogers, 440 U. S.
1,
440 U. S. 9-10
(1979).
[
Footnote 13]
According to the SFAA's president, the Gay Olympic Games would
have offered three "very important opportunities":
"1) To provide a healthy recreational alternative to a
suppressed minority."
"2) To educate the public at large towards a more reasonable
characterization of gay men and women."
"3) To attempt, through athletics, to bring about a positive and
gradual assimilation of gay men and women, as well as gays and
non-gays, and to diminish the ageist, sexist and racist
divisiveness existing in all communities regardless of sexual
orientation."
App. 93. His expectations
"were that people of all persuasions would be drawn to the event
because of its Olympic format and that its nature of 'serious fun'
would create a climate of friendship and cooperation[;] false
images and misconceptions about gay people would decline as a
result of a particpatory [
sic] educational process, and
benefit ALL communities."
Id. at 93-94. He thought "[t]he term
Olympic' best
describe[d] [the SFAA's] undertaking" because it embodied the
concepts of "peace, friendship and positive social interaction."
Id. at 99.
[
Footnote 14]
One court has found that § 110 does not prohibit the use of the
Olympic logo of five interlocking rings and the Olympic torch on a
poster expressing opposition to the planned conversion of the
Olympic Village at Lake Placid, New York, into a prison. The court
found that the use of the symbols did not fit the commercial or
promotional definition of uses in § 110.
Stop the Olympic
Prison v. United States Olympic Committee, 489 F.
Supp. 1112, 1118-1121 (SDNY 1980).
[
Footnote 15]
JUSTICE BRENNAN finds the Act unconstitutionally overbroad. But
on its face, it applies primarily to commercial speech, to which
the application of the overbreadth doctrine is highly questionable.
See Ohralik v. Ohio State Bar Assn., 436 U.
S. 447,
436 U. S. 462,
n. 20 (1978) (citing
Bates v. State Bar of Arizona,
433 U. S. 350,
433 U. S. 380
(1977)). There is no basis in the record to believe that the Act
will be interpreted or applied to infringe significantly on
noncommercial speech rights. The application of the Act to the SFAA
is well within constitutional bounds, and the extent to which the
Act may be read to apply to noncommercial speech is limited. We
find no
"realistic danger that the statute itself will significantly
compromise recognized First Amendment protections of parties not
before the Court."
City Council of Los Angeles v. Taxpayers for Vincent,
466 U. S. 789,
466 U. S. 801
(1984). Accordingly, we decline to apply the overbreadth doctrine
to this case.
[
Footnote 16]
A restriction on nonmisleading commercial speech may be
justified if the government's interest in the restriction is
substantial, directly advances the government's asserted interest,
and is no more extensive than necessary to serve the interest.
Central Hudson Gas & Electric Corp. v. Public Service
Comm'n of New York, 447 U. S. 557,
447 U. S. 566
(1980). Both this test and the test for a time, place, or manner
restriction under
O'Brien require a balance between the
governmental interest and the magnitude of the speech restriction.
Because their application to these facts is substantially similar,
they will be discussed together.
[
Footnote 17]
The objects and purposes of the USOC are to:
"(1) establish national goals for amateur athletic activities
and encourage the attainment of those goals;"
"(2) coordinate and develop amateur athletic activity in the
United States directly relating to international amateur athletic
competition, so as to foster productive working relationships among
sports-related organizations;"
"(3) exercise exclusive jurisdiction, either directly or through
its constituent members of committees, over matters pertaining to
the participation of the United States in the Olympic Games and the
Pan-American Games, including the representation of the United
States in such games, and over the organization of the Olympic
Games and the Pan-American Games when held in the United
States;"
"(4) obtain for the United States, either directly or by
delegation to the appropriate national governing body, the most
competent amateur representation possible in each competition and
event of the Olympic Games and of the Pan-American Games;"
"(5) promote and support amateur athletic activities involving
the United States and foreign nations;"
"(6) promote and encourage physical fitness and public
participation in amateur athletic activities;"
"(7) assist organizations and persons concerned with sports in
the development of amateur athletic programs for amateur
athletes;"
"(8) provide for the swift resolution of conflicts and disputes
involving amateur athletes, national governing bodies, and amateur
sports organizations, and protect the opportunity of any amateur
athlete, coach, trainer, manager, administrator, or official to
participate in amateur athletic competition;"
"(9) foster the development of amateur athletic facilities for
use by amateur athletes and assist in making existing amateur
athletic facilities available for use by amateur athletes;"
"(10) provide and coordinate technical information on physical
training, equipment design, coaching, and performance
analysis;"
"(11) encourage and support research, development, and
dissemination of information in the areas of sports medicine and
sports safety;"
"(12) encourage and provide assistance to amateur athletic
activities for women;"
"(13) encourage and provide assistance to amateur athletic
programs and competition for handicapped individuals, including,
where feasible, the expansion of opportunities for meaningful
participation by handicapped individuals in programs of athletic
competition for able-bodied individuals; and"
"(14) encourage and provide assistance to amateur athletes of
racial and ethnic minorities for the purpose of eliciting the
participation of such minorities in amateur athletic activities in
which they are underrepresented."
36 U.S.C. § 374.
[
Footnote 18]
The ancient Olympic Games lasted 5 days, whereas the modern
Olympics last for 10 days. The ancient Games always took place in
Olympia in southern Greece; the modern Olympic Games normally move
from city to city every four years. (As an effort to reduce
nationalism, cities, as opposed to countries, host the modern
Olympic Games.) In ancient Greece, there may have been a burning
fire for religious sacrifice, since the Olympic Games were part of
a religious festival.
See The Odes of Pindar, Olympia 8,
11. 1-9, p. 25 (R. Lattimore transl., 2d ed.1976). The torch relay,
however, was an innovation of the modern Olympic Committee. The
closest parallel to the modern opening parade was the opening of
the ancient Games with the chariot race. As the chariots entered
the arena and passed the judges, a herald called out the names of
the owner, his father, and his city.
See Finley &
Pleket,
supra, n. 9, at 27. There was no general parade of
athletes by locality, as in the modern Games, and the athletes were
naked, not uniformed. Athletes were eligible only if they were
male, freeborn Greeks. There is no indication that the ancient
Olympics included an "Olympic anthem" or were organized by an
entity called an "Olympic Committee." The awards in ancient Greece
were wreaths of wild-olive, rather than the gold, silver, and
bronze medals presented at the modern Olympics. The logo of
overlapping rings was created by the International Olympic
Committee.
See n
10,
supra. See generally The Olympics: A Book of
Lists 10-13 (J. Beilenson & N. Beilenson eds.1984); Finley
& Pleket,
supra, n. 8; 25 Encyc.Brit.197-201 (15th
ed.1984).
[
Footnote 19]
The SFAA claims a superior right to the use of the word
"Olympic" because it is a nonprofit corporation and its athletic
event was not organized for the primary purpose of commercial gain.
But when the question is the scope of a legitimate property right
in a word, the SFAA's distinction is inapposite. As this Court has
noted in the analogous context of "fair use" under the Copyright
Act:
"The crux of the profit-nonprofit distinction is not whether the
sole motive of the use is monetary gain, but whether the user
stands to profit from exploitation of the [protected] material
without paying the customary price."
Harper & Row Publishers, Inc. v. Nation
Enterprises, 471 U. S. 539,
471 U. S. 562
(1985). Here, the SFAA's proposed use of the word "Olympic" was a
clear attempt to exploit the imagery and goodwill created by the
USOC.
[
Footnote 20]
Although a theatrical production is not as closely related to
the primary use of the word by the USOC as is an athletic event,
Congress reasonably could have found that, when the word "Olympic"
is used to promote such a production, it would implicate the value
given to the word by the USOC.
[
Footnote 21]
The SFAA invokes the Fourteenth Amendment for its discriminatory
enforcement claim. The Fourteenth Amendment applies to actions by a
State. The claimed association in this case is between the USOC and
the Federal Government. Therefore, the Fourteenth Amendment does
not apply. The Fifth Amendment, however, does apply to the Federal
Government, and contains an equal protection component.
Bolling
v. Sharpe, 347 U. S. 497, 4
347 U. S. 99
(1954).
"This Court's approach to Fifth Amendment equal protection
claims has . . . been precisely the same as to equal protection
claims under the Fourteenth Amendment."
Weinberger v. Wiesenfeld, 420 U.
S. 636,
420 U. S. 638,
n. 2 (1975).
See Buckley v. Valeo, 424 U. S.
1 (1976) (per curiam). Petitioners raised the issue of
discriminatory enforcement in their petition for certiorari, and
both petitioners and respondents have briefed the issue fully.
Accordingly, we address the claim as one under the Fifth
Amendment.
[
Footnote 22]
Because we find no governmental action, we need not address the
merits of the SFAA's discriminatory enforcement claim. We note,
however, that the SFAA's claim of discriminatory enforcement is far
from compelling. As of 1982, when this suit began, the USOC had
brought 22 oppositions to trademark applications and one petition
to cancel. App. 61. For example, the USOC successfully prohibited
registration of the mark "Golden Age Olympics."
Id. at
383. The USOC also litigated numerous suits, prior to bringing this
action, prohibiting use of the Olympic words and symbols by such
entities as the National Amateur Sports Foundation,
id. at
392, a shoe company,
id. at 395, the International
Federation of Body Builders,
id. at 443, and a bus
company,
id. at 439. Since 1982, the USOC has brought a
number of additional suits against various companies and the March
of Dimes Birth Defects Foundation,
id. at 437, and Brief
for Respondents 41, n. 58. The USOC has authorized the use of the
word "Olympic" to organizations that sponsor athletic competitions
and events for handicapped persons ("Special Olympics") and for
youth ("Junior Olympics" and "Explorer Olympics"). App. 33, 181.
Both of these uses directly relate to a purpose of the USOC
established by its charter.
See 36 U.S.C. §§ 374(7), (13),
reprinted
supra at 538-539, n. 17. The USOC has not
consented to any other uses of the word in connection with athletic
competitions or events. App. 33.
The USOC necessarily has discretion as to when and against whom
it files opposition to trademark applications, and when and against
whom it institutes suits. The record before us strongly indicates
that the USOC has acted strictly in accord with its charter, and
that there has been no actionable discrimination.
[
Footnote 23]
As such, the USOC is listed with 69 other federally created
private corporations such as the American Legion, Big Brothers --
Big Sisters of America, Daughters of the American Revolution,
Veterans of Foreign Wars of the United States, the National Academy
of Sciences, and the National Ski Patrol System, Inc. 36 U.S.C. §
1101. It hardly need be said that, if federally created private
corporations were to be viewed as governmental, rather than
private, actors, the consequences would be far-reaching. Apart from
subjecting these private entities to suits under the equal
protection component of the Due Process Clause of the Fifth
Amendment, presumably -- by analogy -- similar types of nonprofit
corporations established under state law could be viewed as
governmental actors subject to such suits under the Equal
Protection Clause of the Fourteenth Amendment.
[
Footnote 24]
For example, the USOC may amend its constitution only after
providing an opportunity for notice and hearing, § 375(b); the USOC
must allow for reasonable representation in its membership of
certain groups, § 376(b); the USOC must remain nonpolitical, § 377;
and the USOC must report on its operations and expenditures of
grant moneys to Congress each year, § 382a.
[
Footnote 25]
The USOC may apply to the Secretary of Commerce for yearly
grants not to exceed a total of $16 million, § 384(a), but it has
never done so.
See Brief for Respondents 46. The only
direct federal funding that the USOC has received is a $10 million
grant in 1980, characterized by Congress as "a form of disaster
payment" to help the USOC recover from the losses resulting from
the boycott of the Moscow Olympics.
See S.Rep. No. 96-829,
p. 241 (1980); Act of July 8, 1980, 94 Stat. 857, 898.
[
Footnote 26]
The Commission that recommended the current USOC powers "made it
clear that it did not want the Federal Government directing amateur
athletics in this country." House Report at 9.
[
Footnote 27]
The dissent does not rely on the fact that the USOC is chartered
by Congress to find governmental action in this case.
Post
at
483 U. S.
548-560. JUSTICE BRENNAN attempts to distinguish the
USOC from other private corporations that are chartered by Congress
on the ground that the USOC performs the "distinctive, traditional
governmental function" of "represent[ing] this Nation to the world
community."
Post at
483 U. S. 550.
But absent the additional element of governmental control, this
representational function can hardly be called traditionally
governmental. All sorts of private organizations send "national
representatives" to participate in world competitions. Although
many are of interest only to a select group, others, like the Davis
Cup Competition, the America's Cup, and the Miss Universe Pageant,
are widely viewed as involving representation of our country. The
organizations that sponsor United States participation in these
events all perform "national . . . representational" as well as
"administrative [and] adjudicative role[s],"
see post at
483 U. S. 555,
in selecting and presenting the national representatives.
As with the corporate charter, the dissent acknowledges that the
representational role of the USOC is not dispositive.
Post
at
483 U. S. 553.
According to the dissent, the Olympic Games are "unique [because]
at stake are significant national interests that stem not only from
pageantry but from politics."
Post at
483 U. S. 551.
The dissent then relies primarily on the sequence of events
preceding the USOC's decision not to send athletes to the 1980
summer Olympics as demonstrating "the impact and interrelationship
of USOC decisions on the definition and pursuit of the national
interest."
Post at
483 U. S. 553.
But the governmental influence on that particular decision of the
USOC is hardly representative in view of the absence of such
influence on the vast majority of USOC decisions. Moreover, even
the unique sequence of events in 1980 confirms that the USOC cannot
properly be considered a governmental agency. Although the
President and Congress indicated their view that United States
athletes should not go to the Moscow Olympics, this was not the end
of the matter. The President thought it would be necessary to take
"legal actions [if] necessary" to prevent the USOC from sending a
team to Moscow.
See 1 Public Papers of the Presidents,
Jimmy Carter 1980-1981, p. 636 (1981). Previously, the Attorney
General had indicated that the President believed that he had the
power under the Emergency Powers Act, 50 U.S.C. § 1701, to bar
travel to an area that he considered to pose a threat of national
emergency.
See Washington Post, Apr. 11, 1980, p. A1. The
President's statement indicated a clear recognition that neither he
nor Congress could control the USOC's actions directly. A District
Court, confronted with the question whether the decision not to
send athletes to the 1980 Olympics was state action, noted:
"The USOC is an independent body, and nothing in its chartering
statute gives the federal government the right to control that body
or its officers. Furthermore, the facts here do not indicate that
the federal government was able to exercise any type of '
de
facto' control over the USOC. The USOC decided by a secret
ballot of its House of Delegates. The federal government may have
had the power to prevent the athletes from participating in the
Olympics even if the USOC had voted to allow them to participate,
but it did not have the power to make them vote in a certain way.
All it had was the power of persuasion. We cannot equate this with
control. To do so in cases of this type would be to open the door
and usher the courts into what we believe is a largely
nonjusticiable realm, where they would find themselves in the
untenable position of determining whether a certain level,
intensity, or type of 'Presidential' or 'Administrative' or
'political' pressure amounts to sufficient control over a private
entity so as to invoke federal jurisdiction."
DeFrantz v. United States Olympic
Committee, 492 F.
Supp. 1181, 1194 (DC),
aff'd, mem., 226 U.S.App.D.C.
210, 701 F.2d 221 (1980).
In sum, we remain unconvinced that the functions that the USOC
performs can be viewed as "governmental" action.
[
Footnote 28]
In fact, the Olympic Charter provides that the USOC "must be
autonomous and must resist all pressures of any kind whatsoever,
whether of a political, religious or economic nature." Rule 24.
[
Footnote 29]
For all of the same reasons indicated above, we reject the
SFAA's argument that the United States Government should be viewed
as a "joint participant" in the USOC's efforts to enforce its right
to use the word "Olympic."
See Burton v. Wilmington Parking
Authority, 365 U. S. 715,
365 U. S. 725
(1961). The SFAA has failed to demonstrate that the Federal
Government can or does exert any influence over the exercise of the
USOC's enforcement decisions. Absent proof of this type of "close
nexus between the [Government] and the challenged action of the
[USOC]," the challenged action may not be "fairly treated as that
of the [Government] itself."
Jackson v. Metropolitan Edison
Co., 419 U.S. at
419 U. S.
351.
[
Footnote 30]
In their petition for certiorari, petitioners argued only that,
because the USOC is a "state actor," it is prohibited from
"selecting among diverse potential users of the word
Olympic',
based upon speech-suppressing and invidiously discriminatory
motives." Pet. for Cert. i. The SFAA now argues that, under
Shelley v. Kraemer, 334 U. S. 1 (1948),
the District Court's entry of the injunction prohibiting the SFAA's
use of the word "Olympic" constitutes governmental action
sufficient to require a constitutional inquiry into the USOC's
motivation in seeking the injunction. This new theory of
governmental action is not fairly encompassed within the questions
presented, and thus is not properly before the Court. See
this Court's Rule 21.1(a).
JUSTICE O'CONNOR, with whom JUSTICE BLACKMUN joins, concurring
in part and dissenting in part.
I agree with the Court's construction of § 110 of the Amateur
Sports Act, 92 Stat. 3048, 36 U.S.C. § 380, and with its holding
that the statute is "within constitutional bounds."
Ante
at
483 U. S. 535.
Therefore, I join Parts I through III of the Court's opinion. But
largely for the reasons explained by JUSTICE BRENNAN in
483 U. S. I
believe the United States Olympic Committee and the United States
are joint participants in the challenged activity, and as such are
subject to the equal protection provisions of the Fifth Amendment.
Accordingly, I would reverse the Court of Appeals' finding of no
Government action and remand the case for determination of
petitioners' claim of discriminatory enforcement.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.
The Court wholly fails to appreciate both the congressionally
created interdependence between the United States Olympic Committee
(USOC) and the United States and the significant extent to which §
110 of the Amateur Sports Act of 1978, 36 U.S.C. § 380, infringes
on noncommercial speech. I would find that the action of the USOC
challenged here is Government action, and that § 110 is both
substantially overbroad and discriminates on the basis of content.
I therefore dissent.
I
For two independent reasons, the action challenged here
constitutes Government action. First, the USOC performs important
governmental functions, and should therefore be considered a
governmental actor. Second, there exists "a
Page 483 U. S. 549
sufficiently close nexus between the [Government] and the
challenged action" of the USOC that "the action of the latter may
be fairly treated as that of the [Government] itself."
Jackson
v. Metropolitan Edison Co., 419 U. S. 345,
419 U. S. 351
(1974)
A
Examination of the powers and functions bestowed by the
Government upon the USOC makes clear that the USOC must be
considered a Government actor. It is true, of course, that the mere
"fact
[t]hat a private entity performs a function which
serves the public does not make its acts [governmental]'" in
nature. Ante at 483 U. S. 544
(quoting Rendell-Baker v. Kohn, 457 U.
S. 830, 457 U. S. 842
(1982) (emphasis added)). Such a definition, which might cover "all
. . . regulated businesses providing arguably essential goods and
services," would sweep too broadly. Jackson, supra, at
419 U. S.
354.
The Court has repeatedly held, however, that
"when private individuals or groups
are endowed by the
State with powers or functions
governmental in
nature, they become agencies or instrumentalities of the State and
subject to its constitutional limitations."
Evans v. Newton, 382 U. S. 296,
382 U. S. 299
(1966) (emphasis added).
See Terry v. Adams, 345 U.
S. 461 (1953) (private political association and its
elections constitute state action);
Marsh v. Alabama,
326 U. S. 501
(1946) (privately owned "company town" is a state actor). Moreover,
a finding of government action is particularly appropriate when the
function performed is "traditionally the exclusive prerogative" of
government.
Jackson v. Metropolitan Edison Co., supra, at
419 U. S. 353.
Patently, Congress has endowed the USOC with traditional
governmental powers that enable it to perform a governmental
function. [
Footnote 2/1]
Page 483 U. S. 550
The USOC performs a distinctive, traditional governmental
function: it represents this Nation to the world community. The
USOC is, by virtue of 36 U.S.C. §§ 374 and 375, our country's
exclusive representative to the International Olympic Committee
(IOC), a highly visible and influential international body. The
Court overlooks the extraordinary representational responsibility
that Congress has placed on the USOC. As the Olympic Games have
grown in international visibility and importance, the USOC's role
as our national representative has taken on increasing
significance.
Although the Olympic ideals are avowedly nonpolitical, Olympic
participation is inescapably nationalist. Membership in the IOC is
structured not according to athletes or sports, but nations.
[
Footnote 2/2] The athletes the
USOC selects are viewed, not as a group of individuals who
coincidentally are from the United States, but as the team of
athletes that represents our Nation. During the House debates on
the Amateur Sports Act, Representative Michel expressed it
well:
"American athletes will go into these same [1980 Olympic] games
as products of our way of life. I do not believe that it is the
purpose of the games to set one way
Page 483 U. S. 551
of life against another. But it cannot be denied that
spectators, both in Moscow and all over the world, certainly will
have such a thought in mind when the events take place. So it would
be good for our nation and for the athletes who represent us if the
cooperation, spirit of individuality, and personal freedom that are
the great virtues of our system are allowed to exert their full
influence in the games."
124 Cong.Rec. 31662 (1978). Every aspect of the Olympic pageant,
from the procession of athletes costumed in national uniform, to
the raising of national flags and the playing of national anthems
at the medal ceremony, to the official tally of medals won by each
national team, reinforces the national significance of Olympic
participation. Indeed, it was the perception of shortcomings in the
Nation's performance that led to the Amateur Sports Act of 1978. In
the words of the President's Commission,
"[t]he fact is that
we are competing less well and
other nations competing more successfully because other
nations have established excellence in international athletics as a
national priority."
1 Final Report of the President's Commission on Olympic Sports
1975-1977, p. ix (1977) (Final Report) (emphasis added).
Private organizations sometimes participate in international
conferences resplendent with billowing flags. But the Olympic Games
are unique: at stake are significant national interests that stem
not only from pageantry, but from politics. Recent experience
illustrates the inherent interdependence of national political
interests and the decisions of the USOC. In his State of the Union
Address of January 23, 1980 (a forum, one need hardly add,
traditionally reserved for matters of national import), the
President announced his opposition to American participation in the
1980 summer Olympic Games in Moscow. [
Footnote 2/3] The opposition was not premised on,
e.g., the financial straits of a private corporation,
but
Page 483 U. S. 552
on the implications of participation for American foreign
policy. Echoing the President's concerns, the House of
Representatives passed a resolution expressing its opposition to
American participation. [
Footnote
2/4] In a speech on April 10, 1980, the President threatened to
take "legal actions [if] necessary to enforce the decision not to
send a team to Moscow." [
Footnote
2/5] Shortly thereafter, with the national and international
stakes of the USOC's decision set forth by the President and
Congress, and with reports in the press of possible cuts in federal
aid to the USOC, [
Footnote 2/6] the
USOC announced that the United States would not participate in the
1980 Olympic Games. [
Footnote
2/7]
Page 483 U. S. 553
Although the lesson had been learned long before 1980, [
Footnote 2/8] this sequence of events laid
bare the impact and interrelationship of USOC decisions on the
definition and pursuit of the national interest.
There is more to the USOC's public role than representation. The
current USOC was born out of governmental dissatisfaction with the
performance of the United States in international athletic
competition. This dissatisfaction led Congress to grant the USOC
unprecedented administrative authority over all private American
athletic organizations relating to international competition. The
legislative history reveals, contrary to the Court's assumption,
ante at
483 U. S.
544-545, that no actor in the private sector had ever
performed this function, and indeed never could perform it absent
enabling legislation.
In 1975, President Ford established a Commission on Olympic
Sports to investigate the deteriorating performance of America's
athletes at the Olympic Games, and to recommend
Page 483 U. S. 554
solutions. The Commission traced the problems to a lack of
central coordination, and "recommend[ed] the institution of a
central sports organization for the United States." 1 Final Report
11-13.
In enacting the Amateur Sports Act, Congress gave life to the
Commission's primary recommendation, that the USOC be restructured
[
Footnote 2/9] to assume this new
role of "central sports organization."
See H.R.Rep. No.
95-1627, pp. 8-9 (1978). It greatly expanded the charter of the
USOC, giving it
"perpetual succession and power to serve as the coordinating
body for amateur athletic activity in the United States directly
relating to international amateur athletic competition."
36 U.S.C. § 375(a)(1). It also granted the USOC the power to
recognize an organization as the "national governing body" for a
particular sport, and endowed the USOC with the power to resolve
all conflicts and disputes that would arise among the multitude of
private organizations and individuals over which it would hold
sway.
See 36 U.S.C. §§ 375(a)(5), 382b. [
Footnote 2/10] Thus, in the Amateur Sports Act,
Congress granted the USOC the authority and ability to govern
national amateur athletics related to international
competition.
The public hearing and reporting requirements of the Act reflect
the public nature of the USOC's mission. Under
Page 483 U. S. 555
§ 375(b)(2), the USOC may not amend its constitution or byelaws
unless it
"gives to all interested persons, prior to the adoption of any
amendment, an opportunity to submit written data, views, or
arguments concerning the proposed amendment for a period of at
least 60 days after the date of publication of the notice."
Similarly, the USOC may not recognize a particular amateur
sports organization as the "national governing body" for that sport
without first holding a public hearing on the matter. 36 U.S.C. §
391(a). The Act institutionalizes yet another public check on the
USOC by requiring it annually to
"transmit simultaneously to the President and to each House of
Congress a detailed report of its operations for the preceding
calendar year, including a full and complete statement of its
receipts and expenditures and a comprehensive description of the
activities and accomplishments of the [USOC] during the preceding
year."
36 U.S.C. § 382a(a). The USOC must also submit annual "detailed"
reports to the President and Congress on the expenditures of funds
made available to it by Congress, and provide "detailed and
comprehensive" descriptions of the programs it expects to finance
out of Government grant money in the coming year. 36 U.S.C. §§
382a(b), 384(b).
The function of the USOC is obviously and fundamentally
different than that of the private nursing homes in
Blum v.
Yaretsky, 457 U. S. 991
(1982), or the private school in
Rendell-Baker v. Kohn,
457 U. S. 830
(1982), or the private Moose Lodge in
Moose Lodge No. 107 v.
Irvis, 407 U. S. 163
(1972), or even the public utility in
Jackson v. Metropolitan
Edison Co., 419 U. S. 345
(1974). Unlike those entities, which merely provided public
services, the USOC has been endowed by the Federal Government with
the exclusive power to serve a unique national, administrative,
adjudicative, and representational role. [
Footnote 2/11] The better analogy, then,
Page 483 U. S. 556
is to the company town in
Marsh v. Alabama,
326 U. S. 501
(1946), or to the private political party in
Terry v.
Adams, 345 U. S. 461
(1953). Like those entities, the USOC is a private organization on
whom the Government has bestowed inherently public powers and
responsibilities. Its actions, like theirs, ought to be subject to
constitutional limits.
B
Apart from the argument that the USOC is itself a Government
actor, there is a second reason to find Government action. At a
minimum, this case, like
Burton v. Wilmington Parking
Authority, 365 U. S. 715
(1961), is one in which the Government
"has so far insinuated itself into a position of interdependence
with [the USOC] that it must be recognized as a joint participant
in the challenged activity."
Id. at
365 U. S. 725.
[
Footnote 2/12]
The action at issue in
Burton was the refusal of a
private restaurant that leased space in a public parking facility
to serve a black customer. Central to the Court's analysis was what
later cases have termed "the symbiotic relationship" of the
restaurant to the parking facility.
E.g., Moose Lodge,
supra, at
407 U. S. 175;
Rendell-Baker, supra, at
457 U. S. 843.
This relationship provided the
"sufficiently close nexus between the State and the challenged
action of the [private] entity so that the action of the latter may
be fairly treated as that of the State itself."
Jackson, supra, at
419 U. S.
351.
The USOC and the Federal Government exist in a symbiotic
relationship sufficient to provide a nexus between the
Page 483 U. S. 557
USOC's challenged action and the Government. First, as in
Burton, the relationship here confers a variety of mutual
benefits. [
Footnote 2/13] As
discussed
supra at
483 U. S.
553-556, the Act gave the USOC authority and
responsibilities that no private organization in this country had
ever held. The Act also conferred substantial financial resources
on the USOC, authorizing it to seek up to $16 million annually in
grants from the Secretary of Commerce, § 113(a), and affording it
unprecedented power to control the use of the word "Olympic" and
related emblems to raise additional funds, § 110. As a result of
the Act, the United States obtained, for the first time in its
history, an exclusive and effective organization to coordinate and
administer all amateur athletics related to international
competition, and to represent that program abroad.
Second, in the eye of the public, both national and
international, the connection between the decisions of the United
States Government and those of the United States Olympic Committee
is profound. [
Footnote 2/14] The
President of the United States has served as the Honorary President
of the USOC. The national flag flies both literally and
figuratively over the central product of the USOC, the United
States Olympic Team. The connection is not lost on the athletes:
who can
Page 483 U. S. 558
imagine an Olympic hopeful postponing a lucrative professional
career with the explanation, "I can't pass up this chance to
represent the United States Olympic Committee"? More fundamentally,
as Representative Michel observed, it is through our participation
in the Games that we display "the great virtues of our system." 124
Cong.Rec. 31662 (1978).
Even more importantly, there is a close financial and
legislative link between the USOC's alleged discriminatory exercise
of its word-use authority and the financial success of both the
USOC and the Government. [
Footnote
2/15] It would certainly be "irony amounting to grave
injustice" if, to finance the team that is to represent the virtues
of our political system, the USOC were free to employ
Government-created economic leverage to prohibit political speech.
Burton, supra, at
365 U. S. 724. Yet that is exactly what petitioners
allege. In § 110 of the Act, Congress granted the USOC not a
"normal trademark" but an unprecedented right of "exclusive use of
the word
Olympic' without regard to whether use of the word
tends to cause confusion," and without "incorporat[ing] defenses
available under the Lanham Act." Ante at 483 U. S. 530;
see 483 U. S.
infra. The purpose of this grant of unique discretion was
to enhance the fund-raising ability of the USOC. The Court puts it
well:
"Section 110
directly advances these governmental
interests [promoting the USOC's activities]
by supplying
the USOC with the means to raise money to support the Olympics
and encourages the USOC's activities by ensuring that it will
receive the benefits of its efforts."
Ante at
483 U. S.
538-539 (emphasis added). [
Footnote 2/16]
Page 483 U. S. 559
If petitioner is correct in its allegation that the USOC has
used its discretion to discriminate against certain groups, then
the situation here, as in
Burton, is that
"profits earned by discrimination not only contribute to, but
also are indispensable elements in, the financial success of a
governmental agency."
Burton, 365 U.S. at
365 U. S. 724.
Indeed, the required nexus between the challenged action and the
Government appears even closer here than in
Burton. While
in
Burton the restaurant was able to pursue a policy of
discrimination because the State had failed to impose upon it a
policy of nondiscrimination, the USOC could pursue its alleged
policy of selective enforcement only because Congress
affirmatively granted it power that it would not otherwise
have to control the use of the word "Olympic." I conclude, then,
that the close nexus between the Government and the challenged
action compels a finding of Government action.
C
A close examination of the USOC and the Government thus reveals
a unique interdependence between the two. Although at one time
amateur sports was a concern merely of private entities, and the
Olympic Games an event of significance only to individuals with a
particular interest in athletic competition, that era is passed. In
the Amateur Sports Act of 1978, Congress placed the power and
prestige of the United States Government behind a single, central
sports organization. Congress delegated to the USOC functions
Page 483 U. S. 560
that Government actors traditionally perform -- the
representation of the Nation abroad and the administration of all
private organizations in a particular economic sector. The
representation function is of particular significance here, in my
view, because an organization that need not adhere to the
Constitution cannot meaningfully represent this Nation. The
Government is free, of course, to "privatize" some functions it
would otherwise perform. But such privatization ought not
automatically release those who perform Government functions from
constitutional obligations. Because the USOC performs a Government
function, and because its challenged action is inextricably
intertwined with the Government, I would reverse the Court of
Appeals finding of no Government action, and remand to the District
Court for further proceedings. [
Footnote 2/17]
II
Section 110(a)(4) prohibits "any person" from using the word
"Olympic"
"[w]ithout the consent of the [USOC] for the purpose of trade,
to induce the sale of any goods or services, or to promote any
theatrical exhibition, athletic performance, or competition.
[
Footnote 2/18]"
The Court construes this section to give
Page 483 U. S. 561
the USOC authority over use of the word "Olympic" which far
surpasses that provided by a standard trademark. The Court ignores
the serious First Amendment problems created by its interpretation.
It holds that § 110(a)(4) regulates primarily commercial speech,
and that this section imposes only those incidental restrictions on
expressive speech necessary to further a substantial governmental
interest.
Ante at
483 U. S. 535-541. [
Footnote 2/19]
I disagree. The statute is overbroad on its face, because it is
susceptible of application to a substantial amount of noncommercial
speech, and vests the USOC with unguided discretion to approve and
disapprove others' noncommercial use of "Olympic." Moreover, by
eliminating even noncommercial uses of a particular word, it
unconstitutionally infringes on the SFAA's right to freedom of
expression. The Act also restricts speech in a way that is not
content-neutral. The Court's justifications of these infringements
on First Amendment rights are flimsy. The statute cannot be
characterized as a mere regulation of the "manner" of speech, and
does not serve any Government purpose that would not effectively be
protected by giving the USOC a standard commercial trademark.
Therefore, as construed by the Court, § 110(a)(4) cannot withstand
the First Amendment challenge presented by petitioners.
A
The USOC has held a trademark in the word "Olympic" since 1896,
ante at
483 U. S. 533,
and § 110(a)(3) of the Amateur Sports
Page 483 U. S. 562
Act perpetuates the USOC's protection against infringement of
its trademarks. To be more than statutory surplusage, then, §
110(a)(4) must provide something more than a normal trademark.
Thus, the Court finds that § 110(a)(4) grants to the USOC a novel
and expansive word-use authority. [
Footnote 2/20] In my view, the Act, as interpreted by
the Court, is substantially overbroad, violating the First
Amendment because it prohibits "a substantial amount of
constitutionally protected conduct."
Hoffman Estates v. The
Flipside, Hoffman Estates, Inc., 455 U.
S. 489,
455 U. S. 494
(1982). The Amateur Sports Act is substantially overbroad in two
respects. First, it grants the USOC the remedies of a commercial
trademark to regulate the use of the word "Olympic," but refuses to
interpret the Act to incorporate the defenses to trademark
infringement provided in the Lanham Act. These defenses are
essential safeguards which prevent trademark power from infringing
upon constitutionally protected speech. Second, the Court construes
§ 110(a)(4) to grant the USOC unconstitutional authority to
prohibit use of "Olympic" in the "promotion of theatrical and
athletic events," even if the promotional activities are
noncommercial or expressive.
Ante at
483 U. S. 535,
483 U. S.
540-541. [
Footnote
2/21]
Page 483 U. S. 563
1
The first part of § 110 prohibits use of the word "Olympic" "for
the purpose of trade" or "to induce the sale of any goods or
services." There is an important difference between the word-use
authority granted by this portion of § 110 and a Lanham Act
trademark: the former primarily affects noncommercial speech,
[
Footnote 2/22] while the latter
does not. [
Footnote 2/23]
Charitable solicitation and political advocacy by organizations
such as the SFAA [
Footnote 2/24]
may in part consist of commercial
Page 483 U. S. 564
speech regulated by trademark law, but the expressive element of
such speech has been sheltered from unconstitutional harm by Lanham
Act defenses. Without them, the Amateur Sports Act prohibits a
substantial amount of noncommercial speech.
Trademark protection has been carefully confined to the realm of
commercial speech by two important limitations in the Lanham Act.
First, the danger of substantial regulation of noncommercial speech
is diminished by denying enforcement of a trademark against uses of
words that are not likely "to cause confusion, to cause mistake, or
to deceive."
See 15 U.S.C. § 1066. Confusion occurs when
consumers make an incorrect mental association between the involved
commercial products or their producers.
See E.
Vandenburgh, Trademark Law and Procedure § 5.20, p. 139 (2d
ed.1968). In contrast, § 110(a)(4) regulates even nonconfusing uses
of "Olympic." For example, it may be that, while SFAA's use of the
word "Olympic" would draw attention to certain similarities between
the "Gay Olympic Games" and the "Olympic Games," its use might
nevertheless not confuse consumers. Because § 110 does not
incorporate the requirement that a defendant's use of the word be
confusing to consumers, it regulates an extraordinary range of
noncommercial speech. [
Footnote
2/25]
Page 483 U. S. 565
The fair-use defense also prevents the award of a trademark from
regulating a substantial amount of noncommercial speech.
See 15 U.S.C. § 1115(b)(4). The Lanham Act allows
"the use of the name, term, or device . . . which is descriptive
of and used fairly and in good faith only to describe to users the
goods or services of such party."
Ibid. [
Footnote 2/26]
Again, a wide array of noncommercial speech may be characterized as
merely descriptive of the goods or services of a party, and thus
not intended to propose a commercial transaction. For example, the
SFAA's description of its community services appears to be
regulated by § 110, although the main purpose of such speech may be
to educate the public about the social and political views of the
SFAA. Congress' failure to incorporate this important defense in §
110(a)(4) confers an unprecedented right on the USOC.
See Park
'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.
S. 189,
469 U. S.
200-201 (1985) (noting that fair-use doctrine assists in
preventing the "unprecedented" creation of "an exclusive right to
use language that is descriptive of a product"). [
Footnote 2/27]
Page 483 U. S. 566
In sum, while the USOC's trademark of "Olympic" allows the USOC
to regulate use of the word in the "strictly business" context, the
USOC's authority under § 110(a)(4) to regulate nonconfusing and
good faith descriptive uses of the word "Olympic" grants the USOC
discretion to prohibit a substantial amount of noncommercial
speech. Section 110(a) (4) is therefore substantially overbroad.
See Secretary of State of Md. v. Joseph H. Munson Co.,
467 U. S. 947,
467 U. S. 959
(1984);
Schaumburg v. Citizens for a Better Environment,
444 U. S. 620,
444 U. S. 632
(1980).
2
A key Lanham Act requirement that limits the impact of
trademarks on noncommercial speech is the rule that a trademark
violation occurs only when an offending trademark is applied to
commercial goods and services.
See 15 U.S.C. §§ 1066 and
1127. The Amateur Sports Act is not similarly qualified. Section
110(a)(4) "allows the USOC to prohibit the use of
Olympic' for
promotion of theatrical and athletic events," [Footnote 2/28] even if such uses "go beyond the
`strictly business'
Page 483 U. S.
567
context." Ante at 483 U. S. 535;
see also ante at 483 U. S. 540
(statute extends to promotional uses "even if the promotion is not
to induce the sale of goods"). [Footnote 2/29] This provision necessarily regulates
only noncommercial speech, since every possible commercial use of
the word "Olympic" is regulated by preceding sections of the
statute. [Footnote 2/30]
While the USOC has unquestioned authority to enforce its
"Olympic" trademark against the SFAA, § 110(a)(4) gives it
additional authority to regulate a substantial amount of
noncommercial speech that serves to promote social and political
ideas. The SFAA sponsors a number of nonprofit-making theatrical
and athletic events, including concerts, film screenings, and
plays. [
Footnote 2/31] These
public events are aimed at educating the public about society's
alleged discrimination based on
Page 483 U. S. 568
sexual orientation, age, sex, and nationality. App. 93-99. In
conjunction with these events, the SFAA distributes literature
describing the meaning of the Gay Olympic Games. References to
"Olympic" in this literature were deleted in response to the
injunction, because of § 110's application to the promotion of
athletic and theatrical events.
Id. at 88-89, 94, 97.
3
Thus, contrary to the belief of the Court, § 110 may prohibit a
substantial amount of noncommercial speech, and is therefore
unconstitutionally overbroad.
Schaumburg v. Citizens for a
Better Environment, supra, at
444 U. S. 632.
This overbreadth is particularly significant in light of the
unfettered discretion the Act affords to the USOC to prohibit other
entities from using the word "Olympic." Given the large number of
such users, [
Footnote 2/32] this
broad discretion creates the potential for significant suppression
of protected speech.
"[A] law subjecting the exercise of First Amendment freedoms to
the prior restraint of a license, without narrow, objective, and
definite standards to guide the licensing authority, is
unconstitutional."
Shuttlesworth v. Birmingham, 394 U.
S. 147,
394 U. S.
150-151 (1969).
See also Niemtko v. Maryland,
340 U. S. 268,
340 U. S. 272
(1951).
"Proof of an abuse of power in the particular case has never
been deemed a requisite for attack on the constitutionality of a
statute purporting to license the dissemination of ideas."
Thornhill v. Alabama, 310 U. S. 88,
310 U. S. 97
(1940). This broad discretion, with its potential for abuse, also
renders § 110 unconstitutionally overbroad on its face.
B
The Court concedes that "some" uses of "Olympic" prohibited
under § 110 may involve expressive speech.
Ante at
Page 483 U. S. 569
483 U. S. 535.
But it contends that,
"[b]y prohibiting the use of one word for particular purposes,
neither Congress nor the USOC has prohibited the SFAA from
conveying its message. . . . Section 110 restricts only the
manner in which the SFAA may convey its message."
Ante at
483 U. S. 536
(emphasis added). Section 110(a)(4) cannot be regarded as a mere
time, place, and manner statute, however. By preventing the use of
the word "Olympic," the statute violates the First Amendment by
prohibiting dissemination of a message for which there is no
adequate translation.
In
Cohen v. California, 403 U. S.
15 (1971), we rejected the very notion advanced today by
the Court when considering the censorship of a single four-letter
expletive:
"[W]e cannot indulge the facile assumption that one can forbid
particular words without also running a substantial risk of
suppressing ideas in the process. Indeed, governments might soon
seize upon the censorship of particular words as a convenient guise
for banning the expression of unpopular views. We have been able .
. . to discern little social benefit that might result from running
the risk of opening the door to such grave results."
Id. at
403 U. S. 26.
The Amateur Sports Act gives a single entity exclusive control over
a wide range of uses of a word with a deep history in the English
language and Western culture. Here, the SFAA intended, by use of
the word "Olympic," to promote a realistic image of homosexual men
and women that would help them move into the mainstream of their
communities. As Judge Kozinski observed in dissent in the Court of
Appeals, just as a jacket reading "I Strongly Resent the Draft"
would not have conveyed Cohen's message, so a title such as "The
Best and Most Accomplished Amateur Gay Athletes Competition" would
not serve as an adequate translation of petitioners' message. 789
F.2d 1319, 1321 (CA9 1986). Indeed, because individual words carry
"a life and force of their own," translations never fully capture
the sense
Page 483 U. S. 570
of the original. [
Footnote
2/33] The First Amendment protects more than the right to a
mere translation. By prohibiting use of the word "Olympic," the
USOC substantially infringes upon the SFAA's right to communicate
ideas.
C
The Amateur Sports Act also violates the First Amendment because
it restricts speech in a way that is not content-neutral. A wide
variety of groups apparently wish to express particular
sociopolitical messages through the use of the word "Olympic," but
the Amateur Sports Act singles out certain of the groups for
favorable treatment. As the Court observes,
ante at
483 U. S.
542-543, n. 22, Congress encouraged the USOC to allow
the use of "Olympic" in athletic competitions held for youth
("Junior Olympics" and "Explorer Olympics") and handicapped persons
("Special Olympics"), 36 U.S.C. § 374(13), while leaving to the
USOC's unfettered discretion the question whether other groups may
use it.
See, e.g., USOC v. Golden Age Olympics, Inc.,
Opposition No. 62,426 (Patents and Trademarks Comm'n, June 4, 1981)
(reprinted in App. 383) (denial of use of "Olympic" to senior
citizens group);
USOC v. International Federation of Body
Builders, 219 USPQ 353 (DC 1982) (denial of use to
organization promoting bodybuilding).
The statute thus encourages the USOC to endorse particular
noncommercial messages, while prohibiting others. Such
Page 483 U. S. 571
a scheme is unacceptable under the First Amendment. [
Footnote 2/34]
"[A]bove all else, the First Amendment means that government has
no power to restrict expression because of its message, its ideas,
its subject matter, or its content."
Police Department of Chicago v. Mosley, 408 U. S.
92,
408 U. S. 95
(1972).
See also Regan v. Time, Inc., 468 U.
S. 641,
468 U. S.
648-649 (1984) (holding that Government determination of
publishability of photographs based on whether message is
"newsworthy or educational" constitutes content-based
discrimination in violation of First Amendment).
D
Even if § 110(a)(4) may fairly be characterized as a statute
that directly regulates only commercial speech, its incidental
restrictions on First Amendment freedoms are greater than necessary
to further a substantial Government interest. The sole Government
interest proffered for giving the USOC sweeping powers over the use
of "Olympic" is the desire to provide a financial subsidy to the
USOC. Brief for Respondents 24. At minimum, it is necessary to
consider whether the USOC's interest in use of the word "Olympic"
could not adequately be protected by rights coextensive with those
in the Lanham Act, or by some other restriction on use of the
word.
In the absence of § 110(a)(4), the USOC would have authority
under the Lanham Act to enforce its "Olympic" trademark against
commercial uses of the word that might cause
Page 483 U. S. 572
consumer confusion and a loss of the mark's distinctiveness.
[
Footnote 2/35] There is no
evidence in the record that this authority is insufficient to
protect the USOC from economic harm. The record and the legislative
history are barren of proof or conclusion that noncommercial,
nonconfusing, and nontrademark use of "Olympic" in any way dilutes
or weakens the USOC's trademark.
See Stop The Olympic Prison v.
United States Olympic Committee, 489
F. Supp. 1112, 1123 (SDNY 1980) (dismissing USOC's dilution
claim because no actual proof of such injury). No explanation is
offered, for instance, as to how the use of "Olympic" in theatrical
events in conjunction with a disclaimer "not associated with [the
USOC]" harms the economic force of the trademark.
See
Brief for Petitioners 12. The Court contends that § 110 may
prohibit uses of "Olympic" because it protects an "image carefully
cultivated by the USOC."
Ante at
483 U. S. 541.
Again, there is no proof in the record that the Lanham Act
inadequately protects the USOC's commercial interest in its image,
or that the SFAA has harmed the USOC's image by its speech.
[
Footnote 2/36]
Page 483 U. S. 573
Language, even in a commercial context, properly belongs to the
public, unless the Government's asserted interest is substantial,
and unless the limitation imposed is no more extensive than
necessary to serve that interest.
See ante at
483 U. S. 537,
n. 16;
see also Park 'N Fly, Inc. v. Dollar Park and Fly,
Inc., 469 U.S. at
469 U. S. 215,
n. 21 (STEVENS, J., dissenting), citing
Otto Roth & Co. v.
Universal Foods Corp., 640 F.2d 1317, 1320 (CCPA 1981)
(recognizing importance of "free use of the language" in commercial
speech context). [
Footnote 2/37]
The Lanham Act is carefully crafted to prevent commercial
monopolization of language that otherwise belongs in the public
domain.
See Park 'N Fly, Inc., supra, at
469 U. S.
200-201. [
Footnote
2/38] The USOC demonstrates no need for additional protection.
In my view, the SFAA therefore is entitled to use the word
"Olympic" in a nonconfusing and nonmisleading manner in the
noncommercial promotion of a theatrical or athletic event, absent
proof of resultant harm to the USOC.
I dissent.
[
Footnote 2/1]
The Court argues that the USOC's function of coordinating
private athletic organizations is not one "traditionally the
exclusive prerogative" of government,
Jackson v. Metropolitan
Edison Co., 419 U.S. at
419 U. S. 353.
See ante at
483 U. S. 541.
Even if the coordination function were the only function delegated
to the USOC, which it is not (
see discussion of
representation function, text this page and
infra at
483 U. S.
550-553), the Court's argument would not be dispositive.
Although the Court has in the past implied that a finding of
governmental action likely follows when a private party performs a
function that is traditionally the exclusive prerogative of
government,
e.g., Jackson, supra, at
419 U. S.
352-353, the Court has never expressly limited the
definition of government function to such circumstances. Such a
limitation would be most imprudent, for it would freeze into law a
static conception of government, and our judicial theory of
government action would cease to resemble contemporary experience.
This case illustrates the point. As discussed,
infra at
483 U. S.
554-556, Congress reshaped the USOC in 1978 in part to
fulfill a role -- that of exclusive national coordinator for all
amateur athletics related to international competition -- which no
private party had ever filled.
[
Footnote 2/2]
See IOC Rule 24(B) ("NOCs [National Olympic Committees]
shall be the sole authorities responsible for
the
representation of their respective countries at the Olympic
Games as well as at other events held under the patronage of the
IOC"), reprinted in International Olympic Committee, Olympic
Charter 16 (1985) (emphasis added).
[
Footnote 2/3]
The President's Address is reprinted in 1 Public Papers of the
Presidents, Jimmy Carter 1980-1981, p.196 (1981) (Public Papers),
and also in 126 Cong.Rec. 380 (1980).
[
Footnote 2/4]
See id. at 562-580. The comments of Representative
Ritter during the debate are illuminating:
"Moving or boycotting the Olympics is a strong step in the right
direction, but it must be seen by all Americans as part of an
overall strategy to deal intelligently with the U.S.S.R."
Id. at 575.
[
Footnote 2/5]
The President explained:
"Under Olympic principles -- and this is very important --
athletes represent their nations. Athletes who are not
part of a national team cannot compete in the Olympics. The United
States does not wish to be represented in a host country that is
invading and subjugating another nation in direct violation of
human decency and international law. If legal actions are necessary
to enforce the decision not to send a team to Moscow, then I will
take those legal actions."
Public Papers 636 (emphasis added).
[
Footnote 2/6]
See Dewar & Scannell, White House Looks at USOC's Tax
Status, Washington Post, Apr. 9, 1980, pp. A1, A14.
See
also 6 The Olympian 5 (March 1980) (reprinting President
Carter's letter to the USOC, written in his capacity as "Honorary
President of the United States Olympic Committee," in which the
President explains the "deeper issues . . . at stake" in the USOC's
decision); Paul, Historic decision at Colorado Springs means USA
will not participate at Moscow, 6 The Olympian 4 (May/June 1980)
(hereafter Historic decision) (describing meetings of USOC
officials with "Cabinet members and military leaders" to discuss
question of United States participation in 1980 Olympic Games).
[
Footnote 2/7]
The Resolution adopted by the USOC House of Delegates on April
12, 1980, stated in part:
"Resolved, that since the President of the United States has
advised the United States Olympic Committee that in light of
international events the national security of the country is
threatened, the USOC has decided not to send a team to the 1980
Summer Games in Moscow."
6 The Olympian 6 (May/June 1980).
See also Historic
decision 4 (quoting USOC President Kane's statement "[o]f course,
the USOC will accept any decision the President makes in view of
his analysis of what is best for the country").
[
Footnote 2/8]
The national political ramifications of the USOC's decisions
also were evident in 1968, when the USOC suspended American
medalists Tommie Smith and John Carlos from the United States
Olympic Team. The athletes had called attention to racial troubles
in America by raising black-gloved fists during the medal ceremony.
D. Chester, The Olympic Games Handbook 177 (1975).
The international political impact of the Games is an
inescapable fact of the modern era. For example, Jesse Owens'
dramatic performance in the 1936 Olympic Games was widely perceived
as a rebuke to Hitler and Nazism.
Id. at 90-94. The
labeling of the 1960 Taiwanese team as representative of "Formosa,"
rather than of China, prompted one member to march in protest.
Id. at 142. And the tragic, politically motivated attack
on the Israeli Olympic Team in 1972, in which 11 Israeli athletes,
5 Arabs, and 1 German policeman were killed, forever dispelled any
illusion that the Olympics could exist apart from the violent
vicissitudes of international politics.
Id. at 175. As
Avery Brundage recognized in 1972, "[t]he greater and more
important the Olympic Games become, the more they are open to
commercial, political, and . . . criminal pressure."
Ibid.
[
Footnote 2/9]
The Commission "gave special attention to an examination of the
U.S. Olympic Committee (USOC)," and found it "to be a maddening
complex of organizations . . . unwieldy in its make-up and
structure." 1 Final Report 17. The Commission also found that the
USOC
"was not [originally] conceived to fill the role of national
coordinator of amateur sports. It was simply, by virtue of its
name, membership and financial ability, drawn into the vacuum
created by the unmet needs in U.S. amateur sports."
Ibid. The Commission's Final Report concluded:
"It goes without saying that the
role of Congress will be
crucial. The creation of a central sports organization . . .
and other recommendations will require Congressional approval."
Id. at 130 (emphasis added).
[
Footnote 2/10]
See H.R.Rep. No. 95-1627, pp. 9-10 (1978) (summarizing
the "enlarge[d] . . . purposes and powers of the USOC [that] permit
it to carry out its expanded role").
[
Footnote 2/11]
These attributes would also distinguish the USOC from most of
the "69 other federally created private corporations such as the
American Legion, Big Brothers -- Big Sisters of America, Daughters
of the American Revolution, Veterans of Foreign Wars of the United
States,"
ante at
483 U. S. 543,
n. 23, whose presumed status as private actors is not threatened by
a finding of Government action here.
[
Footnote 2/12]
The Court fails to mention
Burton v. Wilmington Parking
Authority, a case on which petitioner heavily relies. In each
of the decisions principally relied on today, the Court thought it
important to discuss and distinguish
Burton. See Moose
Lodge No. 107 v. Irvis, 407 U. S. 163,
407 U. S. 175
(1972);
Jackson v. Metropolitan Edison Co., 419 U.
S. 345,
419 U. S.
357-358 (1974);
Rendell-Baker v. Kohn,
457 U. S. 830,
457 U. S.
842-843 (1982);
Blum v. Yaretsky, 457 U.
S. 991,
457 U. S.
1010-1011 (1982).
[
Footnote 2/13]
The Court observed in
Burton that the relationship
between the public authority and the restaurant "confer[red] on
each an incidental variety of mutual benefits." 365 U.S. at
365 U. S. 724.
For example, the location of both parking and dining services in
one building could well generate additional demand for each
service.
Ibid. In addition, any improvements in the
restaurant's leasehold would not lead to increased taxes, since the
fee was held by a tax-exempt agency.
Ibid.
[
Footnote 2/14]
In
Burton, the Court also found significant evidence
that would link the two actors in the public's eye. There was "the
obvious fact that the restaurant is operated as an integral part of
a public building devoted to a public parking service,"
ibid., and the fact that
"the Authority located at appropriate places [on the facility]
official signs indicating the public character of the building, and
flew from mastheads on the roof both the state and national
flags,"
id. at
365 U. S. 720.
This evident interdependence created public perceptions of "grave
injustice" that the Court could not ignore.
Id. at
365 U. S.
724.
[
Footnote 2/15]
In
Burton, the Court could not
"ignor[e], especially in view of [the restaurant's] affirmative
allegation that for it to serve Negroes would injure its business,
that profits earned by discrimination not only contribute to, but
also are indispensable elements in, the financial success of a
governmental agency."
Ibid.
[
Footnote 2/16]
See also United States Olympic Committee v. Intelicense
Corp., 737 F.2d 263, 264 (CA2) (Section 110 intended to enable
USOC "to safeguard the USOC's ability to raise the financial
resources that are a critical component of America's capacity to
send world class amateur athletes into international competition
without the massive government subsidies enjoyed by competitors
from other nations"),
cert. denied, 469 U.S. 982 (1984);
Stop The Olympic Prison. v. United States Olympic
Committee, 489 F.
Supp. 1112, 1120 (SDNY 1980) (footnote omitted) ("[S]ection
[110], read as a whole, evidences a legislative intent to establish
strong protection for the Olympic symbols, in part to ensure the
market value of licenses for their use. Recent experience has shown
such licensing to be a substantial inducement for contributions
from a wide variety of commercial corporations, and the drafters of
subsection (b) appear to have had this clearly in mind").
[
Footnote 2/17]
Because both the Court of Appeals and the District Court found
no Government action, neither evaluated petitioners' evidence
regarding the USOC's policy of selective enforcement. 781 F.2d 733,
736-737 (CA9 1986);App. 271. Although the Court recognizes this,
ante at
483 U. S. 542,
n. 22, it nevertheless proceeds to offer its view that petitioners'
"claim of discriminatory enforcement is far from compelling."
Ibid. At this stage of the proceedings, however, the
proper forum for any such evaluation is the District Court.
[
Footnote 2/18]
Section 110 of the Amateur Sports Act, 36 U.S.C. § 380, provides
in part:
"Without the consent of the [USOC], any person who uses
for
the purpose of trade, to induce the sale of any goods or services,
or to promote any theatrical exhibition, athletic performance, or
competition -- "
"
* * * *"
"(3) any
trademark, trade name, sign, symbol, or
insignia falsely representing association with, or authorization
by, the International Olympic Committee or the [USOC]; or"
"(4) the words '
Olympic,' 'Olympiad,' 'Citius Altius
Fortius,' or any combination or simulation thereof tending to cause
confusion, to cause mistake, to deceive, or to falsely suggest a
connection with the [USOC] or any Olympic activity;"
"shall be subject to suit in a civil action by the [USOC] for
the remedies provided in the Act of July 5, 1946 (60 Stat. 427;
popularly known as the Trademark Act of 1946 [Lanham Act, 15 U.S.C.
§ 1051
et seq.])."
(emphases added).
[
Footnote 2/19]
In the Court's view, § 110(a)(4) does not necessarily extend to
purely expressive speech.
Ante at
483 U. S. 536,
and n. 14.
[
Footnote 2/20]
The legislative history of the Act is consistent with its plain
language, and indicates that Congress granted word-use authority
beyond the power to enforce a trademark. Congress' purpose was to
give the USOC authority "to protect certain symbols, emblems,
trademarks, tradenames
and words by civil
action." H.R.Rep. No. 95-1627, p. 10 (1978) (emphasis added).
Significantly, throughout the House Report, Congress refers to the
USOC's authority over the use of "Olympic" as a matter separate
from the USOC's authority to enforce its trademarks.
See, e.g.,
id. at 6, 7, 10, 15, 37-38. Nowhere in the legislative history
is there any hint that Congress equated the USOC's word-use
authority over "Olympic" with its trademark power.
[
Footnote 2/21]
In interpreting the Amateur Sports Act, the Court selectively
incorporates sections of the Lanham Act. Although the Court refuses
to incorporate 15 U.S.C. § 1066 (requirement of consumer confusion)
and § 1115 (statutory defenses), it does appear to incorporate §
1127.
Ante at
483 U. S. 531.
This latter section limits the scope of trademark protection to a
word
"used by a manufacturer or merchant to identify and distinguish
his goods, including a unique product, from those manufactured or
sold by others."
15 U.S.C. § 1127 (1982 ed., Supp. III). The Court does not
explain, however, the inconsistency between the definition of
trademark protection in § 1127 (which limits protection to
commercial uses) and the scope of the protection that § 110(a)(4)
grants the USOC (including the noncommercial promotion of athletic
and theatrical events).
[
Footnote 2/22]
As the District Court recognized:
"You're saying something that I have trouble with. You're
talking Trademark Act and trademark law, trademark policies and
philosophies of this country. But we have a unique situation here
which takes it out of the typical trademark-type of litigation.
[Section 110 of the Amateur Sports Act] imposes civil liability . .
. upon any person who uses [the word 'Olympic'] without U.S.O.C.
consent to promote any athletic performance or competition. . .
."
". . . The plaintiffs here are seeking to enforce a law . . .
which creates a unique and different situation. . . ."
App. 265-266.
[
Footnote 2/23]
See Friedman v. Rogers, 440 U. S.
1,
440 U. S. 11
(1979) (trademark protections only extend to "strictly business"
matters, and involve "a form of commercial speech, and nothing
more"). In no trademark case that the Court has considered have we
permitted trademark protection to ban a substantial amount of
noncommercial speech.
See, e.g., Park 'N Fly, Inc. v. Dollar
Park and Fly, Inc., 469 U. S. 189,
469 U. S. 201
(1985) (Lanham Act provisions prevent "commercial monopolization"
of descriptive language in the public domain).
[
Footnote 2/24]
The SFAA engages in political advocacy and charitable
solicitation, activities that are protected by the First Amendment.
See Schaumburg v. Citizens for a Better Environment,
444 U. S. 620,
444 U. S. 632
(1980) (charitable solicitation by an organization committed to
political advocacy "involve[s] a variety of speech interests --
communication of information, the dissemination and propagation of
views and ideas, and the advocacy of causes -- that are within the
protection of the First Amendment"). It is chartered as a
nonprofit, educational organization whose purpose is to inform the
general public about the "gay movement" and "to diminish the
ageist, sexist and racist divisiveness existing in all communities
regardless of sexual orientation." App. 93, 102. The SFAA solicited
charitable donations and distributed T-shirts, buttons, and posters
using the word "Olympic."
[
Footnote 2/25]
In its complaint, the USOC included a cause of action under §
14330 of the California Business and Professional Code (1987),
which protects trademark holders against uses which dilute the
value of their trademark. App. 7-14. The USOC has not explained,
however, why the remedies provided by the California dilution
statute are insufficient.
It is worth noting that, although some state dilution statutes
do not require proof of actual confusion, they do impose other
limitations that are not imposed by § 110.
"The dilution doctrine cannot and should not be carried to the
extreme of forbidding use of a trademark on any and all products
and services, however remote from the owner's usage."
2 J. McCarthy, Trademarks and Unfair Competition § 24:16, p. 229
(2d ed.1984);
see also 1 J. Gilson, Trademark Protection
and Practice § 5.05[9], p. 5-42 (1986). Only "strong" trademarks
are protected by dilution statutes, and the plaintiff's trademark
must not previously have been diluted by others. 2 McCarthy,
supra, § 24:14, p. 224; E. Vandenburgh, Trademark Law and
Procedure § 5.20, p. 150 (2d ed.1968). It is generally necessary to
show similarity between trademarks and a "likelihood" of confusion.
See 1 Gilson,
supra, § 5.05[9], p. 5-42.
Moreover, state dilution statutes do not generally apply to
descriptive, nontrademark uses of words.
[
Footnote 2/26]
It is important to note that, even after a trademark has
acquired secondary meaning, it may be used in a good faith
descriptive manner under the Lanham Act.
See 1 McCarthy,
supra, § 11:16, p. 475.
[
Footnote 2/27]
One commentator has described the First Amendment significance
of this Lanham Act defense with respect to the regulation of
commercial speech:
"
Virginia Pharmacy\[,
425 U. S.
748 (1976),] and the underlying policies in favor of
free commercial speech are closely parallel to those which apply to
the branch of trademark law dealing with descriptive words and
phrases. The same or very similar policies have been followed for
more than a half century by courts and legislatures applying the
rule of trademark law that descriptive words and terms cannot be
monopolized as trademarks. . . . Without such availability, fair
and open competition might be impaired, the available vocabulary of
descriptive words would be reduced, advertisers could not freely
describe their products, and the public might be deprived of
information necessary to make purchase decisions. . . . If the
court finds . . . that defendant is using the term in a purely
descriptive manner, it presumably can support its holding by
reliance on the
Virginia Pharmacy doctrine and
policies."
1 Gilson,
supra, § 5.09[5], pp. 5-88 to 5-89 (footnotes
omitted).
[
Footnote 2/28]
Noncommercial promotion may include critical reviews of
theatrical performances, anticipatory notices and descriptions in
the media of athletic competitions, and distribution of educational
literature describing the sociopolitical reasons for holding the
public events.
See Central Hudson Gas & Elec. Corp. v.
Public Service Comm'n, 447 U. S. 557,
447 U. S. 580
(1980) (STEVENS, J., concurring in judgment) (promotional
advertising encompasses more than commercial speech). For example,
in response to the injunction, the SFAA excised the use of
"Olympic" from its promotional and educational literature,
cautioned its phone operators to refrain from using the term, and
advised media representatives not to use this word in conjunction
with articles about the cultural and athletic events sponsored by
the SFAA. App. 88-92, 94-115.
[
Footnote 2/29]
Before concluding that the incidental regulation of some
expressive speech is justified,
ante at
483 U. S. 541,
the Court states that it is not clear that § 110 restricts purely
expressive uses of "Olympic,"
ante at
483 U. S. 536.
Such vagueness suggests that the Amateur Sports Act dangerously
chills even purely expressive speech. In the instant case, a local
newspaper organization excised "Olympic" from an edition in
response to the imposed injunction. App. 89.
See also n.
483
U.S. 522fn2/28|>28,
supra.
[
Footnote 2/30]
Every commercial use of "Olympic" is regulated under passages of
the statute which precede this part of § 110. The USOC is
authorized to regulate use of the word as a trademark under §
110(a)(3). All remaining commercial uses of "Olympic" not regulated
by that subsection are governed by § 110(a)(4)'s authorization of
the USOC to control the use of "Olympic" by "any person . . . for
the purpose of trade" or "to induce the sale of any goods or
services." Consistent with the Court's interpretation, this
authorization gives the USOC the right to Lanham Act remedies, even
if the SFAA's use of "Olympic" is noncommercial, nonconfusing, and
merely descriptive.
[
Footnote 2/31]
The SFAA's amateur athletic events include competition by age
groups with mixed genders in some sports to promote a climate of
competition that emphasizes personal improvement, rather than
winning, and promotes goodwill toward all ages, sexes, and races.
App. 98.
[
Footnote 2/32]
See Brief for Respondents 40-41. In Los Angeles and
Manhattan alone, there are over 200 enterprises and organizations
listed in the telephone directories whose names start with the word
"Olympic." 789 F.2d 1319, 1323 (CA9 1986) (Kozinski, J.,
dissenting).
[
Footnote 2/33]
James Boyd White has written:
"When we look at particular words, it is not their translation
into statements of equivalence that we should seek, but an
understanding of the possibilities they represent for making and
changing the world. . . . Such words do not operate in ordinary
speech as restatable concepts, but as words with a life and force
of their own. They cannot be replaced with definitions, as though
they were parts of a closed system, for they constitute unique
resources, of mixed fact and value, and their translation into
other terms would destroy their nature. Their meaning resides not
in their reducibility to other terms, but in their irreducibility.
. . . They operate indeed in part as gestures, with a meaning that
cannot be restated."
J. White, When Words Lose Their Meaning 11 (1984).
[
Footnote 2/34]
Due to the particular meaning of "Olympic," the suppression of
the use of the word has its harshest impact on those groups that
may benefit most from its use, such as those with debilitating
birth defects,
see USOC v. March of Dimes Birth Defects
Foundation, No. CA 83-539 (Colo., July 1, 1983), and the aged,
see USOC v. Golden Age Olympics, Inc., Opposition No.
62,426.
Cf. Virginia Pharmacy Bd. v. Virginia Citizens Consumer
Council, Inc., 425 U. S. 748,
425 U. S. 763
(1976).
[
Footnote 2/35]
In this litigation, the USOC filed causes of action under the
Lanham Act, the Amateur Sports Act, and the California dilution
statute. App. 7-14.
[
Footnote 2/36]
Nor is there any evidence that SFAA's expressive speech caused
economic or reputational harm to the USOC's image. In
Spence v.
Washington, 418 U. S. 405
(1974), a State asserted a similar interest in the integrity of
America's flag as "
an unalloyed symbol of our country,'" and
contended that there is a substantial Government interest in
"preserving the flag as `an important symbol of nationhood and
unity.'" Id. at 418 U. S. 421.
The Court considered whether a State could withdraw "a unique
national symbol from the roster of materials that may be used as a
background for communications." Id. at 418 U. S. 423
(REHNQUIST, J., dissenting). It reviewed a state law that limited
the use of the American flag and forbade the public exhibition of a
flag that was distorted or marked. Id. at 418 U. S. 407,
418 U. S. 422.
The appellant was convicted for violating the statute by displaying
the flag upside down in the window of his apartment with a peace
symbol attached to it. Eight Members of the Court held that the
statute was unconstitutional as applied to appellant's activity.
"There was no risk that appellant's acts would mislead viewers into
assuming that the Government endorsed his viewpoint," and "his
message was direct, likely to be understood, and within the
contours of the First Amendment." Id. at 418 U. S.
414-415. The Court concluded that, since the state
interest was not "significantly impaired," the conviction violated
the First Amendment. Id. at 418 U. S. 415.
Similarly, in this case, the SFAA's primary purpose was to convey a
political message that is nonmisleading and direct. This message,
like the symbolic speech in Spence, is protected by the
First Amendment.
[
Footnote 2/37]
See also Bada Co. v. Montgomery Ward & Co., 426
F.2d 8, 11 (CA9) ("[O]ne competitor will not be permitted to
impoverish the language of commerce by preventing his fellows from
fairly describing their own goods"),
cert. denied, 400
U.S. 916 (1970).
[
Footnote 2/38]
The Lanham Act
"provides national protection of trademarks in order to secure
to the owner of the mark the goodwill of his business and to
protect the ability of consumers to distinguish among competing
producers."
Park 'N Fly, Inc., 469 U.S. at
469 U. S.
198.