*1 INC., et al. ATHLETICS, ARTS & SAN FRANCISCO COMMITTEE OLYMPIC UNITED STATES et al. 25, 1987 Argued 1987 Decided June No. March 86-270. *2 Court, in which Rehnquist, J., opinion delivered Powell, JJ., I, II, joined, and Parts Stevens, Scalia, J., White, C. O’Connor, J., JJ., joined. O’Connor, and III of which Blackmun part part, in which Black- concurring dissenting opinion filed an J., dissenting opinion, in mun, J., filed a Brennan, joined, post, p. 548. J., p. joined, post, 548. Marshall, which With petitioners. cause argued C. Mary Dunlap *3 and McGreivy, Paul Susan Hoffman, her on the briefs were Fred Okrand. for With respondents. the cause argued
John G. Kester Williams, Edward Bennett Vincent him the on brief were Kline, Colbert, Edward T. and Fuller, Joseph Richard J. G. D. Lewis.* of the Court. opinion delivered Powell
Justice of constitutionality and case, scope In this we consider 1978, Act of U. S. C. of the Amateur a provision Olympic States Com- §§371-396, that authorizes United commercial and uses promotional mittee to certain prohibit “Olympic.” word Hernandez, Larson, Rotstein, Abby H. Antonia E. Richard *Robert Graff, Rubenfeld, Armando M. Menocal filed a brief R. Leonard et amici Legal and Educational Fund al. as Mexican American Defense urging reversal. curiae filed a brief for the American Fed- George Laurence Gold Kaufmann as amicus cu- Organizations of Industrial
eration Labor urging affirmance. riae Ratner, Wick, Glenn and Richard A. Copelon, Randall Michael Rhonda Amateur Athletic Union the United States filed brief for the Perkins et al. amici curiae.
I (SFAA), Athletics, Petitioner San Francisco Arts & Inc. nonprofit corporation.1 originally California The SFAA sought incorporate Olympic to under the name “Golden Gate Department told Association,” but was the California Corporations appear that the word could not in a corporate App. incorporation title. 95. in After its 1981, began promote “Gay Olympic the SFAA nevertheless using mailings those words on Games,” its letterheads and newspapers. games in local Ibid. The were to be a 9- day begin August in event to in San 1982, Francisco, Califor- expected nia. The SFAA athletes from hundreds of cities country and cities all Id., from over world. at 402. ceremony open The were with a Games “which will rival Id., the traditional Games.” at id., 354. See at relay carry 406, 425. A 402, 2,000 over runners would City country a torch from New York across the to Kezar Id., 98, 355, Stadium San Francisco. 432. The “Gay Olympic final runner would enter the stadium with the light “Gay Olympic Torch” and Id., Flame.” at 357. ceremony marching would continue with the athletes city respective flags. uniform into the stadium behind their Competition Id., 354, 357, 414. was occur in receiving gold, contests, different with winners silver, *4 Id., 354-355, and bronze medals. at 359, 407, 410. To planned cover the cost of the the Games, SFAA sold T-shirts, bumper bearing buttons, stickers, and other merchandise the “Gay Olympic title Id., 67, 94, Games.” 107, 113-114, 167, 360, 362, 427-428.2 1 president, Waddell, The Dr. Thomas F. petitioner. SFAA’s is also a
2 ultimately 1982 “Gay The athletic event was held under name 1,300 App. countries, A of Games I.” 473. total men and women from 12 Id., States, participated. “Gay 27 and 179 cities 475. The Games II” 3,400 in approximately were 1986 with participating held athletes from 17 Respondents “Gay Brief countries. for 8. The 1990 are Games” sched Ibid. Vancouver, in B. uled to occur C.
526 3048, (Act), Act Stat. Amateur 110 of the
Section Olympic United States 380, respondent § C. grants (USOC)3 certain commercial to right prohibit Committee and various the word “Olympic” uses of and promotional executive 1981, the In late December symbols.4 Olympic respondent. Olympic is also a International Committee The § provides: Act, forth in 36 U. S. C. as set 110 of the Section pur- [USOC], any person who uses for the “Without the consent services, any trade, any promote or to goods or pose to induce the sale of of performance, competition— exhibition, or athletic theatrical Committee, consisting “(1) Olympic symbol of the International interlocking rings; “(2) [USOC], having consisting of an escutcheon the emblem of vertically extending white bars on the base with red and chief blue chief; rings displayed on the interlocking repre- “(3) trademark, name, symbol, insignia falsely sign, or any trade Olympic with, by, the International senting or authorization association [USOC]; or or the Committee Fortius’, “(4) any or com- ‘Olympiad’,‘Citius Altius ‘Olympic’, the words mistake, confusion, tending to cause thereof to cause bination or simulation any or deceive, falsely suggest [USOC] a connection with the or to activity; Olympic by for the remedies subject [USOC] in a civil action “shall suit be (60 427; popularly known as the July provided in Act of Stat. Act]) seq.]. 1051 et How [15 U. S. C. [Lanham Act of 1946 Trademark (a)(2) actually in subsection of this ever, any person who used the emblem (a)(4) thereof, section, words, any or subsection or the combination 21, 1950, September shall not be any purpose prior to for lawful
this section continuing the same from such lawful use for prohibited this section addition, any person In services. who purpose goods or and for same used, trademark, used, actually any trade actually assignor other or whose (4) (a)(3) name, symbol, insignia described subsections sign, or prior September shall not be any purpose lawful this section use for the same continuing from such lawful prohibited this section goods or services. purpose and for same “(b) suppliers goods may or authorize contributors [USOC] trademark, any well as [USOC] name of the services to use the trade or of International Committee symbol, insignia, or emblem the contributions, goods, or services were advertising that the [USOC] selected, of, approved, or donated, or for the use supplied, furnished to *5 informing it of the SFAA, wrote to the director of USOC requesting that the Act, of the Amateur existence “Olympic” immediately in use of the word terminate SFAA description planned The SFAA at first its Games. “Olym agreed “Athletic” for the word to substitute the word pic,” resumed use of the term. The but, later, one month advertising its that the was still became aware SFAA USOC May newspaper “Olympic” through in a article as Games brought August, In suit the Federal Dis 1982. the USOC to en the Northern District of California trict Court for “Olympic.” join The District use of the word the SFAA’s pre temporary restraining granted and then a order Court Appeals liminary injunction. for the Ninth The Court of proceedings, the District affirmed. After further Circuit summary judgment perma granted the USOC Court injunction. nent Appeals judgment of the Dis- affirmed the
The Court of the Act It found that trict Court. 781 F. 2d granted with- exclusive use of the word prove requiring that the unauthorized use the USOC to out regard confusing to the defenses available to and without was entity Lanham violation under the sued for a trademark an seq. 1051et It amended, 15 U. S. C. Act, 60 Stat. enforced that the USOC reach the SFAA’s contention did not discriminatory rights the court manner, in a because its actor bound the con- is not a state found that that the The court also found of the Constitution. straints ‘Olympic’ [in “property righ[t] and its asso- the word USOC’s Olympic or Pan-American team or or United States [USOC] used team members. “(c) name right exclusive to use the ‘United shall have [USOC] (a)(1) Committee’; symbol described subsection States (a)(2) section; section; of this the emblem described subsection any ‘Olympic’, ‘Olympiad’, Altius Fortius’ or combination ‘Citius the words (a) rights in subsection of this subject preexisting to the described thereof section.” *6 symbols slogans] protected
dated can be without violat- ing the First Amendment.” 781 F. at 737. The court 2d, petition rehearing denied the SFAA’s en banc. Three judges finding panel’s interpretation dissented, that the the Act raised serious First Amendment issues. 789 F. 2d 1319, 1326 granted (1986), certiorari,
We
II Appeals contends that SFAA the Court of erred in interpreting granting anything the Act more “Olympic.” “[T]he than a normal in trademark the word ‘starting point every involving case construction of a stat- language Kelly ute Robinson, is itself.’” (1986) (quoting Chip Stamps Drug 36, 43 Blue v. Manor (1975) concurring)). Stores, U. S. J., (Powell, provides: Section 110 of the Act any person [USOC], “Without consent who purpose any uses for the goods of trade, to induce the sale of promote any services, or or to theatrical exhibi- performance, competition— athletic tion, or “(4) ‘Olympic’, ‘Olympiad’, the words ‘Citius Altius any or Fortius’, combination or simulation thereof tend- ing to cause confusion, mistake, cause to deceive, or falsely suggest any [USOC] a connection with the Olympic activity; subject [USOC]
“shall be to suit a civil action provided [Lanham] for the remedies in the Act.” 36 380(a). § U. S. C. argues “tending
The SFAA that the clause to cause confu- properly apply “Olympic.” sion” read to the word But there is no “thereof,” because reading comma after the more natural “tending
of the section is that to cause confusion” only “any modifies combination or simulation thereof.” Nev- regard language ertheless, we do not as conclusive. We legislative history therefore examine the of this section. Congress passed Before 110 of the Act, unauthorized use punishable criminally. of the word was The rele- require vant statute, force since did not the use to be *7 confusing. it Instead, made it a crime for:
“any person [the USOC]. pur- . . . other than . . for the pose perform- trade, of theatrical exhibition, athletic competition ance, and or as an advertisement to induce any any the sale of article whatsoever or attendance at performance, compe- theatrical exhibition, athletic any purpose tition or for business or charitable to use ‘Olympic’, ‘Olympiad’, . . . the words or ‘Citius Altius any Fortius’ or combination these words.” 64 Stat. (1976ed.) §379 (emphasis amended, as 36 U. S. C. added). Judiciary § language
The House Committee drafted the of 110 ultimately adopted. explained that was The Committee that previous penalty “criminal has been found to be un- requires proof workable as it of a criminal intent.” (1978)(House Rep. p. Report). H. R. 95-1627, No. changes response from the criminal statute “were made to Depart- a letter from the Patent and Trademark Officeof the appended ment Commerce,” ibid., that the Committee to Report. explained: the end of its This letter 110(a)(4) only “Section makes actionable not use of the ‘Olympic’,‘Olympiad’, words ‘Citius Fortius’, Altius any any thereof, combination but also simulation or confusingly tending similar derivation thereof to cause falsely confusion, to cause to mistake, deceive, or to any Olympic suggest [USOC] or a connection with activity. . . . prohibitions some 110 carries “Section from forward existing enacted in 1950 and adds some new statute (a)(1) g.
prohibitions, in section tend- e. words described ing cause or mistake, to deceive confusion, to cause any Olympic activity.” [USOC] respect with to the added). (emphasis Id., at 38 history legislative intended
This demonstrates provide the USOC with exclusive control use of regard to whether an unauthorized word without tends to cause confusion. use the word §110 argues that the reference in The SFAA further incorporating as Lanham remedies should be read Act See 15 traditional trademark well. U. S. C. defenses 1115(b).5 argument ignores language clear This replaced reference to remedies Also, section. shorthand typically specific an earlier draft’s list remedies available injunctive recovery infringement, g., relief, e. for trademark *8 damages, attorney’s profits, and fees. See Lanham costs, §§1116, 15 S. 1117. This list contained §§ 34,35, Act U. C. Cong. defenses. 124 Rec. no reference to trademark (1978) 110(c)). § (proposed Moreover, USOC al ready “Olympic.” App. in the word 378- a trademark held interpretation, Act be 382. Under the SFAA’s would language legislative largely superfluous. sum, In clearly § history that of 110 indicate intended “Olympic” grant use of the exclusive word without USOC regard confusion, word tends to cause to whether use of the incorporate § that does not defenses available under the Lanham Act. argues that should not able to Specifically, the SFAA USOC be descriptive
prohibit its the word because its use “is of and use of fairly only goods good faith to describe to users or serv used 1115(b)(4). § ices.” U. S. C.
III recognized protection “[n]ational This Court has that trademarks . . . is desirable because trademarks foster com petition quality by securing and the maintenance of to the producer good reputation.” Fly, Park ’N benefits Fly, Inc. v. Dollar Park and Inc., § seq., Congress In Act, the Lanham 15 U. C. 1051 et S. es system protecting tablished a such trademarks. Section “any 45 of the Lanham Act defines trademark as word, symbol, any adopted name, or device or combination thereof identify and used a manufacturer or merchant to and dis tinguish goods, including unique product, his from those (1982 § manufactured or sold others.” 15 U. S. C. 1127 III). §32 Supp. ed., Under of the Lanham Act, owner protected of a is trademark from unauthorized uses that “likely are to cause confusion, or to cause mistake, to de 1114(1)(a). § grants ceive.” Section 33 of the Lanham Act statutory alleged infringer. several an defenses to trademark § 1115. protection granted
The to the use of the USOC’s symbols pro- differs words from the normal trademark respects: prove tection two need not that a con- likely confusion, tested use to cause and an unauthorized statutory user of the word does not have available the normal argues, in effect, defenses.6 SFAA that the differences the Lanham Act and 110 between are of constitutional di- “Olym- First, mension. the SFAA contends the word generic7 pic” gain protec- is a word that could not trademark argues the Lanham Act. tion under The SFAA that this may, however, equitable defenses, The user raise traditional such as *9 20, Respondents Brief for n. 17. laches. See 7 descriptive product A name a generic. common of or service is Be distinguish generic identity cause a name definition does not of particular product, registered a it cannot be aas trademark under-the 1064(e). 2, 14(c), §§ 1052, §§ Lanham Act. See 15 U. S. C. See also 1 (1984). McCarthy, 12:1, § Competition p. J. Trademarks and Unfair 520 532 constitutionally required
prohibition thus and that is granting prohibits Congress a trade- from First Amendment argues “Olympic.” the SFAA Second, the word mark Congress granting prohibits from Amendment that First requirement that a the author- of a word absent exclusive use likely prove is to cause that an unauthorized use ized user in turn. address these contentions confusion. We A fungi- recognized always that are not This Court has words “run[s] suppression particular words a of ble, and that process.” suppressing ideas in the Cohen risk of substantial (1971). argues The SFAA 403 U. S. 26 California, prohibits Congress granting principle from that “Olympic,” of a control of uses the word USOC exclusive generic.8 recognition Yet this that the views as word SFAA always against principle a that when has balanced been organization acquires the ex- “as the result value word money” entity, entity penditure skill, an labor, may property right constitutionally in the a limited obtain 248 Press, Associated International News Service v. word. (1918). Cases, Trade-Mark 100 U. S. See U. S. 239 92 Congress whether need this case decide
There no entity generic private grant exclusive use could ever reasonably that the com- could conclude word. 8 sym use of grant by statute of exclusive distinctive words This may unique. of these statutes by Congress is not Violation some bols (veterans’ g., e. See, orga § 18 705 penalties. in criminal U. S. C. result (4-H (American Club); § § nizations); Cross); § Red National Owl”). P. also FTC v. A. W. (“Smokey Bear”); (“Woodsy § 711a See (1946) Co., (reviewing stat Paper application Red Cross See, ute). statute, provide for civil enforcement. Others, like the USOC Revolution); (Boy § 27 g., 36 U. (Daughters § of the American e. 18c S. C. (1982 (Little (Girl Baseball); ed., § Scouts); League Scouts); § III) (American Academy). National Theater Supp.
533 was the value of the word “Olympic” mercial and promotional and the end energy, the USOC’s “own talents product Zacchini and time, effort, expense.” much result of (1977). Co., 433 U. 575 Broadcasting S. Scripps-Howard International Olympic with USOC, together respondent The the word at least (IOC), have used Committee modern Games Olympic began. App. when the since of France, acting pursuant Baron Pierre de Coubertin 348. then the revival of commission, proposed ato government international under- promote the ancient Games Olympic Chester, The Games Handbook Olympic D. standing. (1975). identify De sought “spirit” Coubertin the influ- corrupted by that had been ancient Games Olympic Pleket, M. & H. The Finley and See money politics. ence of (1976).9 Thousand Years De The First Games: Olympic IOC, that has established elabo- thus formed Coubertin Olym- for the conduct of modern rate rules and procedures (1985). In addition, Rules 26-69 Charter, pics. Olympic See committee to the use protect rules direct national every these flame, and motto from unauthor- symbol, of the Olympic flag, Id., Bye-laws to Rules 6 and 53.10 Under the IOC use. until A.D. Olympic Games were held from B.C. The ancient Emperor Theodosius I. The they abolished the Roman when were important sporting in a “circuit” of festivals. Olympic were the most Games Delphi, Pythian Games at the Nemean “circuit” also included the The Nemea, sporting the Isthmian Games at Corinth. As these Games profes turned from amateurs to true grew importance, athletes festivals receiving gifts money from sionals, training year and substantial all Finley Pleket, cities. See M. & H. The and from their home individuals (1976); Encyc. 68-82 Brit. The First Thousand Years Olympic Games: 1984). (15th ed. De at the Con Olympic flag presented Baron Coubertin 10 The was interlocking background a white with five gress Paris in 1914. It has blue, yellow, black, green, rings, in the colors center. The rings red, order, “symbolize the union of the five continents and the in that Olympic spirit at the Games in a all over the world meeting of athletes from friendship, preached by competition good the ideal frank of fair and Charter, Olympic Olympic Rule 6 Baron de Coubertin.” Olympic for the committee national is the Charter, the USOC represent authority the United the sole with United States authority, Pursuant to Games.11 States *11 symbols Olympic exten- and words the has used Olympic object country under the sively fulfill its to in this safeguarding development “ensuring] of and of Charter sport.” Rule 24. Olympic Id., Movement origins word history of the and associations of The the SFAA’s “Olympic” the meritlessness demonstrates generic simply plucked Congress word out that contention vocabulary granted use to the English its exclusive theof reasonably Congress 1896, the find that since could USOC. acquired “Olympic” law is what trademark has word meaning secondary distinctive “has become known as a —it § 2(f), 15 goods USOC’s] [the Act, Lanham in commerce.” 1052(f). Fly, § Park Inc. v. Dollar Park 'N See U. S. C. right adopt and Fly, The to at 194. Inc., S., 469 U. [of] goods property distinguish the or a word “to use such by all of use person to the exclusion is, mark it whose long recognized.” Trade-Mark persons, has been other reasonably could supra, Because Cases, at 92. “Olym distinguished the word has that the USOC conclude grant Congress’ through decision to pic” efforts, its own “Olympic” property right falls in the word a limited formally Ibid. The Olympic flame is symbol. Olympic are the rings alone Olympic motto is auspices the IOC. The Olympia under lit in “Faster, “ex- Higher, Stronger,” and Altius, Fortius,” meaning “Citius, Ibid. The motto Olympic Movement.” aspirations of the presses principles of amateur- on the conference at an international originated held in 1894 at the Sorbonne by De sports organized Coubertin ism suggested Didon Pére Henri-Martin delegate, A French in Paris. (school), lycée le his Albert the entrance to engraved on the words motto IOC, adopted which thereafter, founded the De Coubertin Shortly Grand. Guttmann, 13-14 Must Go On A. Games motto. 1921, replacing the more infor formally organized in was The USOC received its The USOC Committee. mally organized American in 1950. charter corporate first
within the of trademark law scope protections, and thus cer- tainly within constitutional bounds.
B Congress also acted it reasonably when concluded that the USOC should not be that an required unauthorized prove use word is likely to confuse the public.12 To the extent 110§ “for applies uses purpose trade [or] induce sale of any goods services,” U. S. C. 380(a), its application to commercial speech. Commercial “receives speech a limited form of First Amend Posadas de Puerto Rico Assoc. v. Tour ment protection.” Company ism Puerto Rico, Cen 478 U. 340 (1986); S. Corp. tral Hudson Electric Gas & v. Public Service Comm’n New York, *12 (1980). 557, 447 S.U. 562-563 Section 110 also of allows the USOC to the use prohibit of for promo tion of theatrical and athletic events. Although many these uses will be promotional commercial some speech, uses See Fried may the go beyond “strictly business” context. Rogers, man v. (1979). 1, 440 U. S. 11 In this case, use SFAA claims that its of the word “Olympic” was intended a statement convey to about the status of political homosex Thus, uals the SFAA that society.13 claims this case § 110 suppresses speech. political
12 uses, regulates § To the extent 110 it confusing is within normal constitutionally may regulate trademark bounds. Government “de speech. Virginia Pharmacy ceptive Bd. misleading” or commercial v. Inc., Virginia Council, Citizens 748, (1976); Consumer Rogers, Friedman 1, U. S. 9-10 president, Gay 13 According Olympic to the SFAA’s Games would important “very opportunities”: offered have three “1) provide healthy suppressed To recreational alternative to a minority.
“2) large at public To educate the towards a more reasonable charac- women. gay terization of men and “3) athletics, positive attempt, bring through gradual To about and women, gay gays non-gays, men and as well as and assimilation and purposes, the use of one word particular By prohibiting has SFAA prohibited nor neither its athletic The SFAA held its conveying message. from I” “Gay under the names Games in its format planned event II” in See respectively. Games 1982 and “Gay and ex § it clear that restricts purely Nor is supra. n. 110 restricts uses the word Section “Olympic.”14 pressive may convey message. in which the its the manner SFAA only are character on expressive speech properly The restrictions of en purpose as incidental to the primary congressional ized activities.15 The ap the USOC’s rewarding and couraging existing ageist, in all communi- sexist and racist divisiveness diminish App. 93. regardless of ties sexual orientation.” expectations people persuasions of all would be drawn His “were that Olympic its format and that its nature of ‘serious event because of friendship images eo-operation[;] false would create a climate of fun’ people partic- as a of a misconceptions gay about would decline result Id., ALL process, and benefit communities.” patory [sic] educational ‘Olympic’ [the SFAA’s] best thought “[t]he describe[d] He term 93-94. concepts “peace, friendship undertaking” it embodied the because Id., at 99. positive social interaction.” Olympic § prohibit not the use of the One court has found that 110 does poster expressing interlocking Olympic torch on a logo rings of five Placid, Olympic Village planned conversion of the opposition to Lake symbols York, prison. The that the use of the did into a court found New Stop in 110. promotional fit definition uses the commercial Committee, Supp. F. Olympic Prison v. United States 1980). (SDNY 1118-1121 *13 unconstitutionally But Brennan finds the Act overbroad. Justice speech, applica to face, applies primarily it to commercial which its on v. highly questionable. See Ohralik of the overbreadth doctrine is tion (1978) 447, 462, Assn., (citing n. 20 Bates v. State Bar 436 U. S. State Ohio (1977)). Arizona, 350, in the 380 There is no basis record Bar of infringe interpreted applied signifi to that the Act will be to believe application of the Act to the cantly speech rights. The on noncommercial bounds, Act extent to which the well within constitutional SFAA is speech find is limited. We no “re may apply to noncommercial be read compromise recog significantly will danger that the statute itself alistic parties City protections not before the Court.” Amendment nized First Vincent, 466 S. 801 Angeles Taxpayers Los v. U. Council propriate inquiry is thus whether the incidental restrictions greater necessary on First Amendment freedoms are than governmental further substantial interest. United States (1968).16 O’Brien, v. U. S. Congress grant
One reason for the USOC exclusive con “Olympic,” trol of the word as with other trademarks, is to ensure that the USOC receives the benefit of its own efforts pro so that the will an have incentive to continue to “quality product,” public. duce a that, turn, benefits the McCarthy, Competition See J. Trademarks and Unfair (1984). pp. special § 2:1, 44-47 inBut circumstance of public promot the USOC, has a broader interest ing, through participation the activities of the USOC, the great amateur athletes from the United States “the four- yearly sport Olympic Olympic festival, Games.” Char (1985). goal Olympic ter, Rule 1 The USOC’s under the 24(B), Charter, Rule is to further the movement, promote development that has as its aims: “to of those physical qualities sport”; and moral which are the basis of “to young people through sport spirit educate in a of better un derstanding friendship, thereby between each other and of helping peaceful to build a better and more world”; and “to spread Olympicprinciples throughout thereby the world, creating goodwill.”’ Id., id., international Rule 1. See also (aims IOC). Congress’ promoting Rule interests in purposes the USOC’s activities include these as well as those (1984). Accordingly, apply we decline to the overbreadth doctrine to this case. nonmisleading speech A restriction may justified on commercial if be government’s substantial, interest in the directly restriction is ad interest, government’s vances the asserted and is no more extensive than Corp. interest. Central Hudson Gas & Electric necessary to serve the York, Public Service Comm’n New 447 U. S. Both this time, place, or manner restriction under O’Brien re test and the test for a quire governmental a balance magnitude between the interest and the speech application restriction. Because their to these facts is substan similar, tially they together. will be discussed *14 in Section the charter.17 enumerated USOC’s specifically interests by sup- these directly governmental advances money support the means to raise the with plying are to: objects purposes of the USOC 17 The and and encour- goals for amateur athletic activities establish national goals; age of those the attainment in develop activity the United and amateur athletic coordinate competition, international amateur athletic directly relating to States relationships among working sports-related productive so as to foster organizations; directly through either or its constit- jurisdiction,
exercise exclusive committees, participation the pertaining to uent members of over matters Games, the Olympic in Games and Pan-American of the United States games, in such and over including representation of the United States when Olympic Games and the Pan-American Games organization States; held in the United States, directly by delegation to the either obtain for the United repre- governing body, competent the most amateur
appropriate national competition in and Games and possible each event sentation Games; Pan-American involving athletic activities promote support and amateur nations; foreign United States and participation encourage physical public and promote and fitness activities; amateur athletic sports persons concerned with devel- organizations assist and athletes; opment programs for amateur of amateur athletic disputes involving of conflicts and provide for the swift resolution athletes, bodies, sports organiza- governing and amateur amateur national athlete, trainer, any coach, tions, protect opportunity amateur and administrator, participate in amateur athletic or official to manager, competition; for use development of amateur athletic facilities
foster the making existing amateur athletic facilities and amateur athletes assist athletes; available for use amateur physical training, information on provide and coordinate technical analysis; performance and equipment design, coaching, n research, development, and dissemination encourage support sports sports safety; medicine and in the areas of of information provide athletic activities for assistance to amateur encourage women; programs amateur athletic encourage provide assistance to feasible, individuals, including, where competition handicapped *15 Olympics encourages
the the USOC’s activities ensur- ing that it will receive the benefits of its efforts. §
The restrictions of 110 are not than broader reasonably necessary could have determined to be to further primarily applies these interests. Section 110 to all uses of goods the word to induce the sale of or services. Although protects only against confusing the Lanham Act Congress’ judgment respecting uses, a certain word is not so Congress reasonably limited. could conclude that most com- symbols likely mercial uses of the words and are to confusing. be It also could determine that unauthorized confusing, may uses, even if not nevertheless harm the by lessening USOC the distinctiveness and thus the commer- cial value of the marks. See Schechter, The Rational Basis (1927) of Trademark Protection, 40 Harv. L. Rev. 813, 825 (one injury may gradual to a trademark owner be “the whit- tling away dispersion identity upon and hold the uses). public by nonconfusing mind of the mark or name” sought In this case, SFAA to sell T-shirts, buttons, bumper stickers, items, and other all emblazoned with the “Gay Olympic possibility title Games.” The for confusion as sponsorship to is obvious. Moreover, it is clear that the sought exploit magnetism,” SFAA to the “commercial see Mfg. Kresge Mishawaka Rubber & Woolen Co. v. Co., S. S. (1942), given of the word value question USOC. There is no that this unauthorized use right could undercut the USOC’s efforts to use, and sell the use, to the word since much future, of the word’s value comes from its limited use. an Such adverse effect on the directly contrary Congress’ USOC’s activities is interest. expansion opportunities meaningful participation by handicapped in- programs competition dividuals in individuals; of athletic for able-bodied “(14) encourage provide assistance to amateur athletes of racial and purpose ethnic eliciting participation minorities for the of such mi- they norities in amateur athletic underrepresented.” activities which are §374. 36 U. S. C. may though protection the traditional
Even this exceed rights circumstances, a trademark owner certain speech application commercial is not of the Act congres- necessary legitimate protect than broader does not violate First sional interest and therefore Amendment. promotional extends to uses of word
Section also promotion “Olympic,” even if the is not to induce the sale of may promo- prohibit purely goods. Under *16 only promotion the relates to an tional uses of the word when theatrical event. The USOC created the value of athletic or by using in an it connection with athletic event. the word by Congress reasonably the could find that use of word other directly impinge promote an athletic event would entities to legitimate right of exclusive use. The on the USOC’s example. proposed of the word is an excellent SFAA’s use place 9-day “Gay Olympic a to take over The Games” were period in around the and were to be held different locations relay, They parade a with world. were to include torch a by city, “Olympic an uniformed athletes of both sexes divided gold, “Olympic the Committee,” anthem” and award logo medals, and were advertised under silver, and bronze rings. directly overlapping All of these features of three modern-day Olympics, Olympic parallel not the Games image in The the SFAA that occurred ancient Greece.18 days, Olym Olympic The whereas the modern ancient Games lasted place Olympia days. always took pics last for 10 The ancient Games normally Greece; Olympic city from southern the modern Games move (As cities, nationalism, city years. op an every four effort to reduce Games.) countries, Olympic In ancient Greece posed to host modern religious sacrifice, burning Olym may there have been a fire for since Pindar, part religious The pic were of a festival. See Odes Games (R. 1976). 1-9, transi., The Olympia 8, p. 25 Lattimore 2d ed. torch 11. relay, however, Olympic The was an innovation of modern Committee. parade opening opening was the of the an parallel closest the modern with chariot race. As chariots entered arena cient Games owner, father, the names of the his passed judges, a herald called out to invoke sought exactly was the image carefully cultivated by the USOC. The SFAA’s use of the expressive word can- not be divorced the value from efforts USOC’s have given to it. The mere fact that the SFAA claims an expressive, as opposed to a purely commercial, does not purpose it give First Amendment right to itself the “appropriate] harvest of those who International News sown.” Service have Associated Press, S., 248 U. 239-240.19 The USOC’s right to prohibit use of the word in the promotion of ath- letic events is at the core of its legitimate property right.20 city. Finley Pleket, supra and his & See n. at 27. There gen- was no parade by locality, Games, eral of athletes as in the modern and the ath- naked, eligible letes were only they not uniformed. Athletes were if were male, freeborn Greeks. There is no that the Olympics indication ancient “Olympic included an organized entity anthem” or were an called an “Olympic The Committee.” awards ancient Greece were wreaths olive, gold, silver, wild presented rather than the and bronze medals at the logo Olympics. overlapping rings modern The was created the In- 10, supra. ternational generally Committee. See n. See (J. Olympics: 1984); A Book of Lists 10-13 N. Beilenson & Beilenson eds. (15th 8; 1984). Finley Pleket, n. supra Encyc. & Brit. 197-201 ed. *17 19 superior right The SFAA of “Olympic” claims a to the use the word nonprofit corporation because it is a and its athletic event orga was not primary purpose nized for the gain. question of commercial But when the scope property word, is the legitimate right of a in a the SFAA’s distinc inapposite. tion is this analogous As Court has noted in the of context “fair use” Copyright under the Act: profit/nonprofit
“The crux of the distinction is not whether the sole motive monetary gain of the profit use is but whether user stands the to from exploitation [protected] customary paying of the material without the Publishers, price.” Harper Enterprises, & Row Inc. v. Nation 471 U. S. (1985). 539, 562 He.re, proposed “Olympic” the SFAA’s use of the word was a clear attempt exploit goodwill to imagery by the created the USOC.
20 Although production closely pri a theatrical is not as related to the mary event, the by use of the word USOC as is an athletic rea sonably “Olympic” that promote could have found when the word is used to production, implicate given such a by it would the value to the word the USOC.
542
IV granted argues if use the exclusive The that even SFAA en- Amendment, USOC’s not the First 110does violate discriminatory right is violation of that forcement inquiry is whether The fundamental Fifth Amendment.21 prohibitions governmental actor to whom is a the USOC “private apply.22 The is a cor- USOC Constitution 21 discriminatory its Amendment for The invokes the Fourteenth SFAA applies a The Amendment to actions claim. Fourteenth enforcement in this case is between USOC and The claimed association State. Therefore, Amendment not the Fourteenth does Federal Government. Amendment, however, apply to Federal Gov Fifth does apply. The protection component. Bolling Sharpe, equal an and contains ernment (1954). 497, approach “This to Fifth Amendment Court’s precisely equal protec as protection . . . been same to equal claims has Weinberger v. Wiesen under the Fourteenth Amendment.” tion claims Valeo, 638, Buckley v. feld, 636, n. 2 See U. S. U. S. curiam). (1976) discriminatory raised the issue of en (per Petitioners certiorari, petitioners respond petition for and both in their forcement fully. Accordingly, we address the claim briefed the issue ents have under the Fifth Amendment. one action, governmental we the mer we find no need address Because note, however, discriminatory claim. We enforcement its of the SFAA’s discriminatory compel from enforcement far that the SFAA’s claim brought opposi began, suit the USOC had ling. As of when this petition App. to For applications and one cancel. 61. tions trademark registration the mark example, successfully prohibited Id., litigated Olympics.” at The USOC also numerous Age 383. “Golden action, prohibiting use of the words and prior bringing suits Foundation, id., Amateur symbols by such as the National entities Body 392, id., 395, company, at the International Federation at shoe id., Builders, id., company, at 439. and a bus Since against companies brought suits various has additional USOC number Foundation, id., Brief the March of Dimes Birth Defects Respondents 41, n. has authorized use of the word 58. organizations competitions and events sponsor athletic *18 (“Junior Olympics”) youth Olym handicapped persons (“Special and for for 33, “Explorer Olympics”). App. 181. Both of these uses di pics” and by its rectly purpose to a established charter. See relate USOC 538-539, (13), n. The 374(7), reprinted supra, §§ 17. USOC C. U. S. 36 U. S. C. law.” Federal under established poratio[n] the USOC granted § 1101(46).23 Act, Congress In the on requirements certain § 371, imposed charter, corporate through funding for some USOC,24 provided and 380, § and symbols, and words of the use exclusive grants.25 direct through does charter it a corporate granted that Congress
The fact
All corporations
agent.
the USOC Government
render
with athletic
in connection
any
of the word
other uses
consented
has not
App. 33.
or events.
competitions
against whom it
as to when
necessarily has discretion
The USOC
against whom it
when and
applications, and
trademark
opposition to
files
that the USOC
strongly indicates
before us
The record
suits.
institutes
no ac-
that there has been
charter and
strictly in
with its
accord
has acted
discrimination.
tionable
private
federally created
with 69 other
such,
is listed
As
the USOC
Big Sisters of
Legion, Big
American
as the
corporations such
Brothers —
Revolution,
Foreign
Veterans of
America, Daughters of the American
Sciences,
Academy
and the Na
States,
the National
of the United
Wars
hardly
§
need be said
1101. It
36 U. S. C.
System, Inc.
Ski Patrol
tional
govern
viewed as
corporations were to be
federally
private
if
created
reaching.
far
actors,
consequences would be
private
than
rather
mental
equal pro
under the
private entities to suits
subjecting these
Apart from
Amendment, pre
Fifth
Due Process Clause
component of the
tection
corporations established
nonprofit
types of
sumably by analogy
—
—similar
subject to such
governmental actors
could be viewed
state law
under
Amendment.
of the Fourteenth
Clause
Equal Protection
under the
suits
provid
only after
may amend its constitution
example, the USOC
For
375(b);
§
must allow
hearing,
the USOC
for notice
opportunity
an
ing
376(b);
§
groups,
membership of certain
in its
representation
reasonable
for
report
must
on
377;
§
the USOC
nonpolitical,
remain
must
year,
moneys
Congress each
grant
expenditures of
operations
its
§ 382a.
yearly grants
Secretary
for
of Commerce
may apply to the
The USOC
million, 384(a),
never done so. See
but it has
$16
a total of
not to exeeed
funding that the USOC
only
direct federal
Respondents 46.
Brief
by Congress as “a
1980,
characterized
grant
million
$10
is a
has received
result
from the losses
help the USOC recover
payment” to
form of disaster
96-829,
Rep. No.
Olympics.
S.
See
boycott
the Moscow
ing from
898.
(1980);
July
94 Stat.
Act of
p. 241
*19
usually by
by
government,
granted
a
a
charters
act under
essentially private
thereby
They
lose their
not
do
State.
regulation by
government
Even extensive
character.
entity
regulated
into
of the
the actions
not transform
does
Metropolitan
government.
Edi-
v.
See Jackson
those
(1974).
Congress
fact that
Nor is the
This Court entity performs challenged functions that have when prerogative’” “‘traditionally the Fed- the exclusive been Metropoli- (quoting v. at 842 Jackson Id., eral Government. Yaretsky, quoted supra, in Blum v. 353; Co., tan Edison 1011) (emphasis supra, the Rendell-Baker added Court). performed by Certainly the activities purposes objects in- interest, as its a national serve “[t]hat supra. corporation The fact n. indicate. See public entity performs private a function which serves [governmental] Rendell- action.” make its acts does not supra, Amateur Act was at 842. The Kohn, Baker v. disorganization and the serious fac- correct the enacted “to sports plague disputes amateur that seemed to tional Report, Ath- at 8. See House United States.” Oldfield (CA9 1985) (citing Rep. Congress, 2d 505 S. 779 F. letic (1978)). merely pp. The Act authorized 2-3 95-770, No. always per- to coordinate activities that have been by private formed entities.26 Neither the conduct nor sports govern- coordination of amateur has been traditional mental function.27
26 powers the current “made The Commission that recommended USOC directing it clear that it did not want the Federal Government amateur ath country.” Report, House at 9. letics this rely The dissent does not on the fact that the USOC is chartered Post, Congress governmental to find action in this case. at 548-560. attempts distinguish private Brennan to the USOC from other Justice corporations by Congress ground that the that are chartered on “distinctive, “repre performs governmental traditional function” of Post, community.” sent[ing] this Nation to the world at 550. But absent control, governmental representational this func the additional element hardly traditionally governmental. private All tion can be called sorts of organizations representatives” participate send “national to in world com others, many only group, petitions. Although are of interest to a select Cup Competition, Cup, the America’s and the Miss like Davis Universe country. Pageant, widely involving representation as of our are viewed sponsor participation in organizations The that United States these events perform representational” . . as well as “administrative [and] all “national. role[s],” 555, selecting presenting the na adjudicative post, see at representatives. tional charter, repre- corporate acknowledges with the the dissent that the
As Post, dispositive. According role of the USOC is not at 553. sentational dissent, “unique sig- are at are [because] to the Games stake only poli- pageantry interests that stem not from but from nificant national Post, primarily sequence on the ties.” at 551. The dissent then relies preceding the decision not to send athletes to the 1980sum- events USOC’s impact interrelationship Olympics demonstrating mer “the of USOC Post, pursuit the national at decisions on the definition interest.” particular governmental But the influence on that decision of the 553. hardly representative in view the absence of such influence on USOC is Moreover, majority unique the vast of USOC decisions. even the se- properly quence of events in 1980 confirms that the USOC cannot be con- governmental agency. Although the President and in- sidered go dicated their view that United States athletes should to the Moscow thought it Olympics, this was not the end of the matter. President necessary” prevent necessary “legal [if] be to take actions would Papers of the Presi- sending USOC from a team to Moscow. See Public Court has held that a government fundamentally, Most only for a decision private can held “normally responsible be or has such has coercive power provided it exercised when covert, either overt encouragement, significant that of must deemed to be the [govern law be choice 1004; Blum Rendell-Baker Yaretsky, v. supra, ment].” Bros., Brooks, See Inc. v. Kohn, Flagg at 840. supra, Edison Jackson v. 149, (1978); Metropolitan S. 436 U. No. 107 v. 407 U. S. Lodge Irvis, Moose Co., 357; supra, 144, (1972); Co., v. S. H. Kress & Adickes 163, 1980-1981, Attorney dents, Jimmy p. Previously, the Carter power believed that he had the had indicated that the President General Act, travel to an Emergency Powers U. S. C. bar under pose emergency. national See he threat of area that considered Post, p. A1. The President’s statement indi Washington Apr. *21 the recognition that neither he nor could control a clear cated Court, question the directly. actions A District confronted with USOC’s Olympics to the 1980 was state the decision not to send athletes whether action, noted: body, nothing chartering in its statute independent is an
“The USOC government right body its officers. the federal the to control or gives Furthermore, government the the here do not indicate that federal facts any type of ‘de control over the USOC. able to exercise was facto’ Delegates. of The federal decided a secret ballot its House USOC may power prevent partici- from have had the athletes government par- if the had voted to them to Olympics in the even USOC allow pating way. power it make them vote in a certain ticipate, but did not have the equate power persuasion. cannot this with con- had was the We All it open the type so in would be to door and usher To do cases of trol. realm, they largely nonjustieiable a where into what we believe is courts determining a position find in the untenable whether themselves would level, type ‘po- or intensity, or of ‘Presidential’ ‘Administrative’ certain private entity as to pressure sufficient control over so litical’ amounts to jurisdiction.” Olympic DeFrantz Com- federal v. United States invoke (DC), mem., App. 226 D. mittee, F. 1194 aff’d U. S. C. Supp. 492 (1980). 221 210, 701 F. 2d per- sum, functions that we remain unconvinced that the In “governmental” be action. can viewed as forms (1970). The USOC’s choice of how to exclu enforce its sive to use the word right is not simply govern mental decision.28 There is no evidence that the Federal Government coerced or in the encouraged USOC exercise most, of its At the Federal right. Government, by failing the USOC’s use of its can be supervise rights, said to exercise of or approval “[m]ere the initiatives” of the acquiescence USOC. Blum v. Yaretsky, S.,U. at 1004-1005. This is to make the enough USOC’s actions those of the Govern Bros., Ibid. See Inc. v. ment. Flagg Brooks, supra, 164-165; Jackson v. Edison Metropolitan Co., S.,U. 357.29 Because the USOC is not a governmental actor, claim that the SFAA’s USOC has enforced its in a rights dis manner criminatory must fail.30 28 fact, In provides Charter that the USOC “must be autono pressures any whatsoever, mous and must resist all kind whether of a political, religious or economic nature.” Rule 24. above, all reject For same reasons indicated we the SFAA’s ar gument that the United “joint States Government should be viewed as a participant” in right the USOC’s efforts to enforce its to use the word “Olympic.” Wilmington Parking See Burton v. Authority, 365 U. S. The SFAA has failed to demonstrate that the Federal Govern any ment can or does exert influence over the exercise of the USOC’s en proof type forcement decisions. of this of “close nexus between Abs.ent challenged [USOC],” and the challenged [Government] action of the may “fairly action not be treated as that of the [Government] itself.” Co., Metropolitan S., Jackson Edison 419 U. at 351. petition certiorari, petitioners In their argued only that because prohibited is a “selecting among “state actor” it is from diverse *22 potential ‘Olympic’, upon users of the word based speech-suppressing and invidiously discriminatory motives.” Pet. for i. Cert. The SFAA now argues Shelley Kraemer, (1948), that under 334 U. 1S. the District entry injunction prohibiting Court’s of the the SFAA’s use of the word governmental constitutes action require sufficient to a constitu inquiry tional seeking injunction. into the USOC’s motivation in This theory governmental fairly encompassed new of action is not within the questions presented properly and thus is not before the Court. See this 21.1(a). Court’s Rule
V judgment Accordingly, Court affirm the we Appeals the Ninth Circuit.
It is so ordered. joins, whom Justice O’Connor, with Blackmun Justice dissenting part. concurring part § Ama- agree 110 of the construction of the Court’s I with § its Sports C. and with U. S. Act, Stat. teur holding bounds.” “within constitutional the statute is through join III I I of the Parts Therefore, at 535. Ante, explained by largely opinion. for the reasons But Court’s dissenting opinion, I I-B be- in Part of his Brennan Justice Olympic United Committee the United States lieve activity challenged joint participants States are equal protection provisions subject such are Accordingly, the Court I would reverse Fifth Amendment. finding Appeals’ remand the action and of no Government discriminatory petitioners’ claim of for determination case enforcement. Marshall Brennan, joins, with whom Justice
Justice dissenting. congression- wholly appreciate fails to both
The Court interdependence ally the United States between created (USOC) and the States, and the United Committee significant Act 110 of the Amateur to which extent infringes noncommercial §380, on 36 U. S. C. challenged speech. the action of the USOC I find that would §110 is both substan- action, and that here is Government tially of content. on the basis and discriminates overbroad I therefore dissent.
I challenged independent here the action reasons, two For performs First, action. constitutes Government governmental therefore be important and should functions governmental “a Second, there exists actor. considered
549 [Government] sufficiently nexus between close latter challenged action of the that “the the USOC action” of [Government] fairly itself.” may as that treated be Metropolitan 345, 351 Co., 419 U. S. Edison v. Jackson
A powers functions bestowed Examination of upon that the USOC makes clear the USOC Government true, It is actor. a Government be considered must entity performs private ‘[t]hat a mere “fact course, that the public make its acts does which serves function a ” (quoting Rendell- at 544 [governmental]’ Ante, in nature. added)). (1982)(emphasis 842 457 U. S. Kohn, Baker v. regulated might busi- “all. . . cover which definition, a Such goods arguably services,” providing essential nesses broadly. supra, 354. sweep Jackson, too would pri- repeatedly that “when however, held, has The Court groups with the State are endowed or individuals vate. they governmental become nature, powers functions or subject to agencies State instrumentalities 382 U. S. Newton, Evans v. limitations.” its constitutional added). (1966) Terry (emphasis Adams, v. See (1953) (private political and its elections association U. S. action); Alabama, Marsh v. state constitute actor). (1946) “company (privately is a state town” owned ap- particularly finding government is action Moreover, “traditionally performed propriate the function when government. prerogative” v. Metro- Jackson exclusive Patently, supra, has politan at 353. Co., Edison powers governmental with traditional endowed perform governmental function.1 it to that enable private ath coordinating function of argues that the USOC’s The Court prerogative” of “traditionally exclusive is not one organizations letic Co., S., Edison at 353. See Metropolitan U. government, Jackson only function del ante, were the if coordination function at 544. Even (see representation USOC, discussion it is not egated to the which argument would infra, 550-553), the Court’s function, page and text this *24 governmental performs distinctive, a traditional The USOC community. represents this the world it Nation to function: §§374 of U. S. our is, virtue C. The USOC Olym- country’s representative to International the exclusive (IOC), highly pic influential interna- a visible and Committee extraordinary repre- body. overlooks the tional The Court responsibility placed has on the that sentational grown Olympic in have international As the Games USOC. visibility importance, the USOC’s role as our national significance. increasing representative on taken has nonpolitical, Olympic avowedly Although the are ideals inescapably Olympic participation is nationalist. Member- according ship in not to athletes or IOC is structured the sports, are nations.2 The athletes the USOC selects but coincidentally group viewed, as a of individuals who are rep- States, of athletes that from the United but as team During Nation. the House debates on Ama- resents our expressed Representative it Act, Michel well: teur go [1980 into these same “American athletes will way games products Olympic] of I of our life. do not way purpose games of one that it is the to set believe Although past implied has in the find- dispositive. not be the Court likely private party performs a ing governmental of action follows when a traditionally government, prerogative the exclusive of function that Jackson, g., supra, 352-353, expressly e. the Court has never limited government to such Such a limi- the definition of function circumstances. imprudent, tation would be most for it would freeze into law static con- judicial ception theory government and our of action would government, of contemporary experience. This cease to resemble case illustrates infra, 554-556, in discussed, Congress reshaped point. As part all to fulfill a role —that of exclusive national coordinator for private no competition to international amateur athletics related —which party had filled. ever (“NOCs 24(B) Olympic Committees] Rule shall be [National See IOC respective representation their responsible the sole authorities countries at the Olympic well as at other events held under the Games as Committee, IOC”), reprinted Olympic patronage in International added). (1985) (emphasis Charter against of life another. But it cannot be denied that spectators, both in world, Moscow and all over the cer- tainly thought will have such a in mind when the events place. good take So it would be for our nation and for represent cooperation, spirit the athletes who us if the individuality, personal great freedom that are the system virtues of our are allowed to exert their full influ- games.” Cong. ence Rec. 31662 Every aspect Olympicpageant, procession from the raising athletes costumed national to the uniform, of na- *25 flags playing tional and the of national anthems at the medal ceremony, tally by to the official of won each national medals significance Olympic partici- team, reinforces the national of pation. perception shortcomings Indeed, it was the in of the performance Nation’s that led to the Amateur Act of “[t]he 1978. In the words of the Commission, President’s competing fact is that we are less well and other nations competing successfully more because other nations have es- in tablished excellence international athletics as a national priority.” Report 1 Final of the President’s Commission (1977) (Final Olympic Sports p. Report) on ix 1975-1977, added). (emphasis organizations participate
Private sometimes in interna- resplendent billowing flags. tional conferences with But the Olympic unique: significant are Games at stake are national only pageantry poli- interests that stem not from but from experience interdepen- Recent tics. illustrates the inherent political of dence national interests and the decisions January In USOC. his State of the Union Address of (a hardly traditionally forum, 1980 one need add, reserved for import), op- matters of national the President announced his position participation Olym- to American in the 1980summer pic opposition premised in Games Moscow.3 The was not g., private corporation, e. the on, financial straits of a but 3 reprinted The President’s in 1 Papers Address is Public of the Presi (1981) (Public dents, Jimmy 1980-1981, p. Carter Papers), in and also Cong. Rec. 380 foreign for American pol- of participation on implications the House of concerns, Repre- Echoing President’s icy. its opposition a resolution passed expressing sentatives In a on speech April American participation.4 take actions necessary [if] threatened to “legal President a team to Moscow.”5 the decision not to send to enforce and international stakes thereafter, with the national Shortly set forth President Con- decision USOC’s in in the cuts federal reports press possible with gress, announced that the United USOC,6 to the aid in Games.7 States would participate id., Representative during Ritter 4 See at 562-580. The comments Olympics a “Moving boycotting strong is illuminating: the debate are direction, part all Americans as step right but it must be seen Id., intelligently the U. S. S. R.” at 575. strategy to deal with an overall explained: Olympic principles very “Under President —and part their Athletes who are not important represent nations. —athletes Olympics. compete cannot The United States does a national team country invading represented subjugat in a host that is not wish to be decency and international ing nation direct violation of human another necessary the decision not to legal actions are to enforce send law. If Papers Moscow, legal actions.” Public then I take those team will added). (emphasis *26 Status, Scannell, at Tax Looks USOC’s See Dewar & White House 1980, Post, Apr. 9, pp. A1, Olympian A14. See also 6 The 5 Washington 1980) USOC, (March letter to the written in (reprinting President Carter’s Olympic States Commit capacity “Honorary President of the United his explains “deeper ... in tee,” in the the issues stake” President which decision); Paul, Springs Historic at Colorado means decision the USOC’s 1980) Moscow, Olympian (May/June The 4 participate at 6 USA will not decision) (hereafter meetings of (describing USOC officials with Historic military question to discuss leaders” United “Cabinet members and Games). Olympic participation in 1980 States April 12, Delegates the House of on adopted The USOC Resolution “Resolved, the of the part: that since President United in stated in Olympic light Committee that the States has advised United States threatened, security country events the national international 1980 Summer Games in Mos send a team to the has decided to USOC 1980). (May/June Historic Olympian See also decision The cow.” 6 course, ac- “[o]f Kane’s statment the USOC will (quoting President 1980,8 the lesson had been learned before Although long laid of events bare sequence impact interrelationship of the na- of USOC decisions on the definition and pursuit tional interest. role than
There is more to USOC’s public representa- The out of governmental tion. current USOC was born dis- in performance satisfaction with United States international athletic This dissatisfaction led competition. administrative grant unprecedented authority over all American athletic private organizations to international The his- relating competition. legislative reveals, contrary Court’s tory assumption, ante, 544-545, that no actor sector had ever private per- function, formed this and indeed never could it ab- perform sent enabling legislation.
In 1975, President Ford established a Commission on Olympic Sports investigate deteriorating performance Games, of America’s athletes at the and to recom- Olympic eept any decision the President makes in view of his of what is best analysis country”). political The national ramifications of the USOC’s decisions also were suspended evident when the USOC American medalists Tommie Olympic Carlos from the Smith John United States Team. The ath by raising letes had called attention to racial troubles in America black- during ceremony. Chester, gloved Olympic fists the medal D. Games Handbook 177 political impact inescapable The international of the Games is an fact of example, performance the modern era. For Jesse Owens’ dramatic in the Olympic widely perceived Games was as a rebuke to Hitler and Na- Id., labeling repre- zism. at 90-94. The of the 1960 Taiwanese team as prompted of “Formosa” rather than of sentative China one member to Id., protest. tragic, politically march in at 142. And the motivated at- athletes, tack on the Israeli Team in which 11 Israeli Arabs, killed, policeman dispelled any and 1 German were forever illusion Olympics apart that the could exist from the violent interna- vicissitudes of *27 politics. Avery Brundage recognized tional at 175. As “[t]he Id., greater important become, they and more the Games the more are commercial, open political, pressure.” and . . . to criminal Ibid. problems The traced the to Commission mend solutions. “recommend[ed] the institu- coordination, and lack central sports organization for the United States.” central tion of a Report 11-13. 1 Final Congress gave enacting Act, life to
In the Amateur primary recommendation, that the USOC the Commission’s sports of “central to this new role assume be restructured9 Rep. pp. organization.” 95-1627, 8-9 See H. R. No. giving “per- expanded greatly USOC, the it the charter of It coordinating power petual and to serve as succession body activity in the United States di- athletic for amateur competition.” relating rectly amateur athletic to international 375(a)(1). power granted the It also USOC 36 U. C.S. governing body” organization recognize “national an sport, particular and endowed the USOC with the for a disputes power all and would arise to resolve conflicts private organizations among individuals the multitude 375(a)(5), §§ sway. 36 U. S. C. it hold See over which would Congress granted Sports Act, Amateur Thus, 382b.10 ability authority govern ama- national competition. related to international teur athletics requirements hearing reporting public of the Act public of the USOC’s mission. Under nature reflect an “gave special attention to examination of U. S. The Commission complex (USOC),” maddening and found it “to be a Olympic Committee unwieldy make-up Report and structure.” 1 Final . . in its organizations . [originally] that the ÜSOC “was con also found 17. The Commission It sports. of amateur was fill the of national coordinator role ceived name, membership ability, into and financial drawn simply, by virtue of its Ibid. sports.” by the in U. S. amateur unmet needs created vacuum goes saying “It without that the Report Final concluded: The Commission’s sports organiza of central Congress will be crucial. The creation .role of require Congressional approval.” recommendations will . . and other tion . added). Id., (emphasis (1978) 95-1627, pp. (summarizing the 9-10 “en Rep. R. No. See H. carry permit powers [that] of the USOC it to out purposes . large[d]. . role”). expanded its
555
§375(b)(2),
may
bye-
the USOC
not amend its constitution or
“gives
persons, prior
laws unless it
to all interested
adoption
any
opportunity
amendment, an
to submit
arguments concerning
proposed
written data, views, or
period
days
amendment for a
of at least 60
after the date
publication
Similarly,
may
of the notice.”
the USOC
recognize particular
sports organization
amateur
as the “na-
governing body”
sport
holding
tional
for that
without first
391(a).
public hearing
on the matter. 36 U. C.S.
The Act
yet
public
institutionalizes
another
check on the USOC
requiring
annually
simultaneously
it
to “transmit
to the
Congress
report
President and to each House of
a detailed
operations
preceding
year, including
of its
for the
calendar
complete
receipts
expendi-
a full and
statement of its
and
comprehensive description
tures and a
of the activities and
accomplishments
during
[USOC]
preceding year.”
of the
§ 382a(a).
36 U. S. C.
The USOC must also submit annual
reports
“detailed”
to the President and
on the ex
penditures
by Congress,
of funds made available to it
provide
comprehensive” descriptions
“detailed and
programs
expects
grant
it
to finance out of Government
384(b).
money
coming year.
§§ 382a(b),
in the
36 U. S. C.
obviously
fundamentally
The function of the USOC is
private nursing
different than that of the
in
homes Blum v.
Yaretsky,
(1982),
private
B argument Apart is itself a Govern- that the USOC from the ac- to find Government a second reason there is actor, ment Wilmington like Burton v. case, minimum, At a tion. (1961), Authority, Parking in the is one which 365 U. S. position of in- itself into a “has far insinuated so Government recognized [the USOC] terdependence as that it must be with activity.” challenged participant joint Id., at 725.12 in the a private refusal of a in Burton was the action at issue facility public parking space to in a that leased restaurant analysis was Central to Court’s customer. serve black symbiotic relationship” of have termed “the later cases what facility. g., Lodge, parking E. Moose restaurant supra, supra, at 843. This relation- Rendell-Baker, at 175; “sufficiently ship provided nexus between the State close entity [private] challenged so that the action of and the may fairly that of the State treated as the latter be action of supra, at 351. Jackson, itself.” symbi- in a Government exist and the Federal
The USOC provide relationship a nexus between sufficient to otic States,” ante, 543, 23, n. tion, Foreign Wars of the United Veterans finding threatened private as actors is not presumed status whose action here. Government Parking Authority, Wilmington to mention Burton v. The Court fails princi In the decisions heavily relies. each of petitioner a case on which thought important it to discuss and distin today, the Court pally relied on Irvis, Lodge No. S. Burton. See Moose v. U. guish Co., (1974); Metropolitan Edison 419 U. S. 357-358 (1972); Jackson v. Yaretsky, Blum v. (1982); Kohn, 842-843 Rendell-Baker 457 U. S. 991, 1010-1011 challenged USOC’s action and the First, Government. relationship variety here Burton, confers a of mutual supra, gave 553-556, benefits.13 As discussed the Act authority responsibilities private orga that no country nization in this had ever held. The Act also con ferred financial USOC, substantial resources on the authoriz ing up annually grants it to seek million from the $16 § Secretary 113(a), affording unprece of Commerce, it power dented to control the use of the word related funds, emblems raise additional 110. a result As Act, of the the United obtained, States for the first time its history, organization an exclusive and effective to coordinate and administer all amateur related to athletics international competition, represent program and to abroad. eye public, in the
Second, both national and interna- tional, connection between the decisions the United States Government and those of the United States *30 profound.14 Committee is The President of the United Honorary States has served as the President of the USOC. flag literally figuratively The national flies both and over product Olympic the USOC, central the United States Team. The connection is not lost on the athletes: who can
13The Court observed in Burton relationship public that the between the authority and the restaurant variety “eonfer[red] on each an incidental of S., example, mutual benefits.” 365 U. at 724. For the location of both parking dining building and generate services one could well additional Ibid. addition, demand for In any improvements each service. in the restaurant’s leasehold would not lead to increased taxes since the fee was Ibid. tax-exempt agency. held 14 Burton, In significant the Court found also evidence that link would public’s eye. the two actors the There was “the obvious fact that the operated part restaurant is integral public building as an of a devoted to a ibid., service,” public parking Authority and the fact that “the located at appropriate places facility] signs [on the official indicating public the char building, acter of the and flew from mastheads on the roof both the state id., flags,” and interdependence national at 720. This evident created public perceptions “grave injustice” of ignore. that the Court could not Id., at 724. profes- hopeful imagine Olympic postponing a lucrative an pass explanation, up “I this the can’t sional career with represent the United States Committee”? to chance fundamentally, Representative it observed, Michel More display through participation in we the Games that is our system.” Cong. great Rec. 31662 of our “the virtues legis- importantly, Even there a close financial more discriminatory alleged exer- lative link between USOC’s authority of and the financial success of both cise its word-use certainly It would be the Government.15 “irony grave injustice” amounting to finance team if, to political system, represent of the virtues our is to employ economicle- Government-created USOC were free verage speech. supra, prohibit political Burton, at 724. allege. exactly petitioners In 110 the Yet that is what Congress granted the USOC not a “normal trademark” Act, right unprecedented of “exclusive use of word but an regard ‘Olympic’ to whether use the word tends without “incorporating] defenses confusion,” to cause without Ante, 530; Act.” see Part under the Lanham available purpose grant unique II-A, The discretion infra. fundraising ability of the USOC. was to enhance puts it well: Court directly governmental advances these inter-
“Section by supplying activities] [promoting ests USOC’s money support the means to raise with encourages Olympics en- USOC’s activities suring efforts.” that it will receive the benefits its *31 added).16 (emphasis Ante, 538-539 15 Burton, “ignorfe], especially [the in view of In could not res Court injure it allegation Negroes that for to serve would affirmative taurant’s] only to, business, profits by discrimination not contribute its earned in, indispensable govern of a elements the financial success but also are Ibid. agency.” mental Corp., Intelicense Olympic Committee
16 Seealso United States (CA2) (Section safeguard 110 intended to enable USOC “to F. 2d allegation petitioner has in its that the USOC If is correct groups, against certain discriminate its discretion to used “profits earned Burton, as in is that here, the situation then only also are indis- to, contribute but discrimination governmental pensable financial success of a in, elements required agency.” Indeed,*the at 724. S., 365 U. Burton, ap- challenged and the action Government nexus between pears in in Burton the than Burton. While even closer here pursue policy discrimination be- a restaurant was able policy impose upon it a of non- had failed to cause the State pursue alleged policy could its discrimination, affirmatively only because enforcement selective power granted have to control that it would not otherwise it “Olympic.” then, I that the conclude, the use of the word challenged ac- and the the Government close nexus between finding compels action. of Government tion
C and the Government A examination of the USOC close interdependence unique the two. Al- between reveals a thus though merely sports was a concern at one time amateur signifi- Olympic private an event of Games entities, and particular only interest athletic with a cance to individuals passed. competition, In Act the Amateur that era is prestige Congress placed power sports single, central behind a States Government United organization. Congress delegated functions compo ability financial resources that are a critical to raise the the USOC’s amateur athletes into inter capacity to send world class nent of America’s enjoyed by government the massive subsidies competition without national Stop (1984); nations”), denied, cert. competitors from other Committee, Olympic Supp. Olympic Prison v. United States 489 F. omitted) (“[SJection (SDNY 1980) (footnote [110], read as protection whole, strong intent to establish legislative evidences a licenses for symbols, part to ensure the market value of licensing to be a substantial experience has shown such their use. Recent variety corpora a wide of commercial for contributions from inducement (b) clearly appear tions, to have had and the drafters of subsection mind”). *32 traditionally perform represen- actors that Government —the of all and the administration tation of the Nation abroad particular organizations private in a economic sector. significance particular representation here, function is of organization my that need not adhere to an view, because meaningfully represent this cannot Nation. the Constitution “privatize” some func- course, of free, The Government perform. privatization But such tions it would otherwise automatically perform ought release those who Govern- obligations. Because the ment functions from constitutional performs chal- function, and because its Government inextricably lenged action is intertwined with Govern- Appeals finding I of of no ment, would reverse Court fur- and remand to the District Court for action, Government proceedings.17 ther
II 110(a)(4) “any person” using prohibits from Section “Olympic”“[without [USOC] for the the consent of word purpose any goods services, induce the sale of or trade, any performance, promote exhibition, theatrical athletic or to give competition.”18 The Court construes this section to or Appeals and the District Court found no 17 Because both the Court action, petitioners’ regarding neither evaluated evidence Government (CA9 781 P. 2d 736-737 policy of selective enforcement. USOC’s this, ante, recognizes n. 1986); App. Although 271. the Court petitioners’ proceeds to offer its view that “claim of dis it nevertheless Ibid. At this stage criminatory compelling.” is far from enforcement however, any proper forum for such evaluation is the proceedings, District Court. Act, § 380, provides in Amateur 36 U. S. C. 110 of the 18 Section part: pur- [USOC], any person who uses “Without the consent services, trade, any any goods promote the sale or or to pose to induce exhibition, performance, competition— or theatrical athletic trademark,
“(3) name, sign, symbol, insignia falsely repre- any trade or with, by, or authorization the International senting association [USOC]; Committee or *33 “Olympic” authority which over use of word
the USOC provided by surpasses trademark. The that standard far problems ignores Amendment cre- the serious First Court 110(a)(4) § regulates interpretation. by that It holds ated its imposes speech, primarily and that this section commercial speech expressive only restrictions on neces- those incidental governmental sary Ante, interest. a substantial to further at 535-541.19 disagree. on its face because it
I The statute is overbroad application susceptible amount of non- to a substantial is of unguided speech, dis- and vests the USOC with commercial disapprove approve and others’ noncommercialuse cretion to by eliminating “Olympic.” even noncommer- Moreover, unconstitutionally infringes particular it word, uses of a cial expression. right The Act also the SFAA’s to freedom on way speech The in a that is not content neutral. restricts justifications infringements on First Amend- of these Court’s flimsy. rights characterized The statute cannot be ment are regulation speech, and does not a mere of the “manner” as effectively any purpose that would not be Government serve by giving protected a standard commercial trade- 110(a)(4) § by can- Court, as construed Therefore, mark. challenge presented by the First Amendment not withstand petitioners. A in the word The has held a trademark USOC 110(a)(3) § Sports Amateur 1896,ante, since Fortius’, “(4) ‘Olympic’, ‘Olympiad’, ‘Citius Altius any or com- the words confusion, mistake, tending to cause thereof to cause bination or simulation any deceive, falsely suggest [USOC] a connection with the or to activity; for the remedies subject [USOC] in a civil action be to suit “shall (60 427; July 5, popularly known as the Act of Stat. provided 1051 et (empha- § Act, seg.])” 15 U. S. C. [Lanham Trademark Act of added). ses 110(a)(4) necessarily purely view, § extend to does not In the Court’s Ante, and n. 14. expressive speech. against infringement perpetuates protection the USOC’s Act statutory surplusage, To more than its trademarks. be 110(a)(4) § provide something than must more a normal then, 110(a)(4) grants finds Thus, the trademark. Court authority.20 expansive In word-use the USOC a novel interpreted my is Court, substan- view, Act, tially violating it the First Amendment because overbroad, constitutionally protected prohibits “a substantial amount Flipside, Es- Estates v. conduct.” Hoffman Hoffman tates, The Amateur Inc., substantially respects. it First, overbroad two Act grants of a commercial trademark to the remedies *34 “Olympic,” regulate the to inter- the use of word but refuses incorporate pret in- the defenses to trademark the Act to fringement provided Lanham Act. These in the defenses safeguards prevent power trademark are essential which constitutionally speech. infringing upon protected Sec- from 110(a)(4) § grant to the un- ond, the Court construes authority “Olympic” prohibit in the to use of constitutional pro- “promotion events,” athletic even if the of theatrical and expressive. Ante, activities are noncommercial or motional 535, 540-541.21 at
20 history plain legislative language Act is with its The the consistent authority beyond power granted that word-use and indicates purpose give the Congress’ was to USOC author to enforce trademark. trademarks, emblems, tradenames symbols, ity protect “to certain (1978) 95-1627, words Rep. p. (emphasis H. No. 10 civil action.” R. added). Report, Congress House to Significantly, throughout refers authority “Olympic” separate matter over use of as a from the USOC's g., id., 7, e. See, authority to its trademarks. the USOC’s enforce legislative history any is there hint that 37-38. Nowhere “Olympic” authority over with its Congress equated the USOC’s word-use power. trademark 21 Act, Sports selectively incorpo interpreting In the Court Amateur Although incorpo refuses the Lanham Act. the Court to rates sections of confusion) § § (requirement 15 U. C. consumer rate S. Ante, incorporate § defenses), 1127. 531. (statutory appear it does to a scope protection limits the of trademark word “used This latter section the word use of §of 110 prohibits The first part any goods the sale of or “to induce of trade” “for the purpose difference between is an important There or services.” §110 and a portion granted by authority word-use non- affects the former primarily Act trademark: Lanham not.23 the latter does while commercial speech,22 advocacy by organiza- and political solicitation Charitable commercial consist of may part as the SFAA24 tions such in- identify distinguish goods, his or merchant by a manufacturer or sold others.” from those manufactured cluding unique product, III). (1982 explain, how- ed., does not Supp. § Court U. S. C. protection of trademark ever, inconsistency between the definition uses) (which scope protection to commercial § 1127 limits 110(a)(4) (including the noncommercial grants protection events). and theatrical promotion of athletic recognized: the District Court As talking You’re Trade- I trouble with. saying something that have “You’re philosophies of this law, policies and trademark Act and trademark mark takes it out of unique situation here which country. have a But we Amateur 110 of the trademark-type litigation. [Section typical “Olym- word upon any person [the who uses liability . . . imposes civil Act] performance or promote any athletic O. C. consent pic”] without U. S. competition. . . . . creates a seeking a law. . which are to enforce plaintiffs . The here “. . *35 App. . . . .” 265-266. situation
unique and different (trademark (1979) 1, 11 protections Rogers, 440 U. S. Friedman v. See involve “a form of commer “strictly matters and only business” extend to more”). that the Court has In no trademark case nothing speech and cial a substantial protection to ban permitted trademark have we considered Fly, ’N Inc. Dollar See, g., Park speech. e. noncommercial amount of (1985) (Lanham pre provisions Act Inc., 469 U. S. Fly, and Park public language in the descriptive monopolization” of vent “commercial domain). solicitation, ac advocacy and charitable political engages 24 TheSFAA Schaumburg v. Amendment. See by the First protected that are tivities (charitable (1980) Environment, Better Citizens for advocacy “involve[s] a political committed to organization an solicitation information, the dissemina variety speech interests —communication advocacy causes —that ideas, propagation of views tion regulated by expressive speech law, trademark but the ele- speech ment of such has been sheltered from unconstitutional them, harm Lanham Act defenses. Without the Amateur prohibits Act a substantial amount of noncommercial speech. protection carefully
Trademark has been confined to the speech by important realm of commercial two limitations danger regulation First, the Lanham Act. of substantial speech by denying of noncommercial is diminished enforce- against likely ment of a trademark uses of words that are not “to to cause or to confusion, mistake, cause deceive.” See 15 §C. 1066. Confusion occurs when make an U. S. consumers incorrect mental association between the involved commer- products producers. Vandenburgh, cial or their See E. (2d 1968). § p. 5.20, Trademark Law and Procedure ed. 110(a)(4) § regulates nonconfusing In even contrast, uses of may “Olympic.” example, For it be that while SFAA’s use of the word would draw attention to certain simi- “Gay Olympic “Olympic larities between Games” and the might Games,” its use nevertheless not confuse consumers. § incorporate requirement Because 110does not that a de- confusing regu- consumers, fendant’s use of word be it extraordinary range speech.25 lates an of noncommercial Amendment”). protection are within the of the First It is chartered as a nonprofit, organization purpose general educational whose inform public “gay ageist, about movement” and “to diminish the sexist and existing in regardless racist divisiveness all communities of sexual orienta- App. tion.” 102. The solicited charitable SFAA donations and dis- T-shirts, buttons, posters using “Olympic.” tributed the word complaint, § In its the USOC included a cause of action under (1987), protects Business and Professional which California Code against uses trademark holders which dilute value of their trademark. App. explained, however, why 7-14. The USOC has not the remedies provided by the California dilution statute are insufficient. that, noting although
It is worth some state dilution statutes do not re- confusion, they quire proof impose of actual do other limitations that are imposed by 110. “The dilution doctrine cannot and should not be car- *36 forbidding any prod- ried to the extreme of use of a trademark on and all of a also the award trade- prevents The fair-use defense amount of noncommercial from a substantial regulating mark 1115(b)(4). Act § 15 U. The Lanham al- See S. C. speech. which is name, term, use of the or device . . . de- lows “the to and used and faith describe fairly good only scriptive Ibid.26 Again, to or of such goods party.” users services characterized a of noncommercial be array speech may wide of a party, services and merely descriptive goods transaction. not intended to a commercial For propose thus services description community the SFAA’s its example, § the main regulated by purpose to be although appears educate the about social may public of such be to speech to views of failure incor- the SFAA. political Congress’ 110(a)(4) §in confers an un- this defense porate important See Park ’N Inc. v. Fly, on the USOC. precedented right (1985) 469 U. 200-201 Inc., Park S. Dollar Fly, assists in that fair-use doctrine “un- preventing (noting exclusive to use language creation of “an precedented” right is a descriptive product”).27 services, usage.” 2 J. from the owner’s McCar however remote ucts (2d 1984); Competition § 24:16,p. ed. thy, and Unfair see Trademarks § 5.05[9], Gilson, p. 5-42 Protection and Practice 1 J. Trademark also statutes, protected by Only “strong” are dilution trademarks previously have been diluted others. plaintiff’s trademark must not 224; § McCarthy, 24:14, p. Vandenburgh, E. Trademark Law and supra, 1968). (2d necessary 5.20, generally § It p. 150 ed. show Procedure See Gil similarity trademarks and “likelihood” of confusion. between § 5.05[9], Moreover, do p. statutes son, supra, 5-42. state dilution nontrademark of words. generally apply descriptive, uses acquired has important to even after trademark sec It is note that manner may good-faith descriptive in a under ondary meaning, it be used McCarthy, supra, 11:16, p. Act. See 1 475. the Lanham significance the First described Amendment One commentator has respect regulation to the of commercial Lanham Act defense with speech: (1976),] underlying policies Pharmacy[, 425 S. 748 and the
“Virginia U. closely parallel which speech apply are to those free commercial favor of dealing descriptive words and of trademark law with the branch *37 566
In the USOC’s trademark of allows sum, “Olympic” while use of the word in the busi- “strictly to regulate 110(a)(4) to context, authority reg- ness” the USOC’s under uses of the nonconfusing good-faith descriptive ulate the USOC discretion to grants prohibit word “Olympic” 110(a) of noncommercial Section speech. substantial amount (4) therefore overbroad. See substantially Secretary is Co., Md. v. H. Munson 467 U. S. 959 State Joseph Environment, v. Citizens a Better (1984); Schaumburg for 444 U. S.
A Lanham Act that limits the requirement impact key is the rule that a trade- speech trademarks on noncommercial occurs when an trademark is only offending mark violation commercial and services. 15 U. S. C. goods See applied Act similarly §§ 1066 and 1127. The Amateur is not 110(a)(4) “allows the USOC to prohibit Section qualified. for of theatrical and athletic ‘Olympic’ promotion the use if such uses business’ events,”28 “go beyond ‘strictly even very policies phrases. The same or similar have been followed for more century by legislatures applying the rule of trade- than a half courts monopolized descriptive mark words and terms cannot be as trade- law availability, open competition might . . such fair and be marks. . Without vocabulary reduced, impaired, descriptive words would be the available public freely products, might describe their and the advertisers could deprived necessary purchase to make decisions. ... If be of information using purely descriptive the term in a the court finds . . . that defendant is manner, support holding by Virginia reliance on the presumably it can its § 5.09[5], policies.” Gilson, pp. Pharmacy supra, 5-88 to doctrine omitted). (footnotes 5-89 promotion may include critical reviews of theatrical Noncommercial descriptions in performances, anticipatory notices and the media of athletic describing literature the so competitions, and distribution of educational public ciopolitical holding events. See Central Hudson reasons (1980) Comm’n, Public Corp. & Elec. Service Gas (Stevens, (promotional advertising J., concurring judgment) encom response speech). example, For to the passes more than commercial promotional “Olympic” the use of from its injunction, the SFAA excised (statute Ante, 535; ante, context.” see also extends if uses “even promotional is not to induce promotion the sale of This goods”).29 provision necessarily regulates noncommercial only speech, since commercial every possible use of the word regulated by preceding sections of the statute.30
While USOC has unquestioned authority enforce its *38 110(a)(4) “Olympic” SFAA, § trademark the against it gives additional authority to a substantial regulate amount of non- commercial that speech serves to social promote and political ideas. The SFAA a number of sponsors nonprofit-making theatrical and athletic events, film including concerts, screen- ings, plays.31 These events are aimed at public educat- the ing public about society’s alleged discrimination based on literature, and educational phone operators cautioned its to refrain from using term, representatives and advised media not to use this word conjunction with articles about the sponsored cultural and athletic events App. 88-92, the SFAA. 94-115. concluding Before regulation expressive the incidental of some justified, ante, speech is the Court states that it is not clear that ante, § purely expressive 110 restricts “Olympic,” uses of at 536. Such vagueness suggests that the dangerously Amateur Act chills even purely expressive speech. case, In the instant newspaper organiza a local “Olympic” response tion excised from an imposed injunc edition to the supra. App. tion. 89. See also n. 30Every “Olympic” regulated commercial use of passages is under § precede part statute which regu this of 110. The USOC is authorized to 110(a)(3). § late use of remaining the word as a trademark under All com “Olympic” regulated by governed mercial uses of that subsection are 110(a)(4)’s §by “Olympic” authorization of the USOC to control the use of “any person purpose ... for the of trade” or “to induce the sale of any goods interpretation, or services.” Consistent with the Court’s gives right remedies, authorization the USOC the to Lanham Act even “Olympic” noncommercial, if the SFAA’s use of nonconfusing, is merely descriptive. competition by age- The SFAA’s amateur athletic events include groups genders sports promote with compe mixed some to a climate of emphasizes personal improvement pro tition that rather winning, than goodwill ages, sexes, motes all App. toward and races. 98. nationality. App. age, 93-99. sex, and orientation, sexual conjunction lit- events, these the SFAA distributes In with Gay Olympic describing meaning Games. erature in re- in this were deleted to literature References application injunction, sponse of 110’s to the because promotion Id., 88-89, of athletic and theatrical events. 97. § may pro- contrary Court, 110
Thus, to the belief of the speech, and is hibit a substantial amount noncommercial unconstitutionally Schaumburg v. Cit- therefore overbroad. supra, at 632. This over- Environment, a Better izens for light particularly significant in of the unfettered breadth prohibit other enti- discretion Act affords large using “Olympic.” word Given the num- ties from potential creates this broad discretion users,32 ber of such speech. significant suppression protected “[A] law subjecting of First Amendment freedoms to exercise objective, prior license, narrow, restraint of a without *39 guide licensing authority, is uncon- definite standards Birmingham, v. 394 U. S. stitutional.” Shuttlesworth (1969). Maryland, also Niemtko v. 150-151 See (1951). power particular in of an 268, 272 “Proof abuse requisite a for the con- has never been deemed attack on case stitutionality purporting of a to license the dissemi- statute 97 Alabama, Thornhill v. U. S. nation ideas.” potential discretion, abuse, This its broad with for unconstitutionally overbroad on its face. also renders 110
B “Olympic”prohib- The Court concedes “some” uses § may speech. expressive Ante, involve ited under 110 Brief for Angeles Respondents 40-41. In Los and Manhattan See alone, enterprises organizations there are listed the tele over “Olympic.” names start the word 789 F. 2d phone directories whose with 1986) (CA9 X, (Kozinski, dissenting). “[b]y prohibiting 535. But it contends that the use of one particular purposes, word for neither nor the prohibited conveying message. USOC has the SFAA from its only .. . Section 110restricts the manner in which the SFAA may convey added). message.” (emphasis its Ante, 110(a)(4) regarded Section place, cannot be as a mere time, By preventing and manner statute, however. the use of the “Olympic,” word the statute violates the First Amendment by prohibiting message dissemination of a for which there is adequate no translation. (1971),
In Cohen rejected California, U. S. 15 we very today by notion advanced the Court when consider- ing censorship single expletive: of a four-letter
“[W]e indulge assumption cannot the facile that one can particular running forbid words without also a substan- suppressing process. tial risk of ideas Indeed, governments might upon censorship soon seize particular guise banning words as a convenient expression unpopular views. We have been able . . . might to discern little social benefit that result from run- ning opening grave the risk of the door to such results.” Id., at 26. gives single entity
The Amateur
Act
exclusive con-
range
deep history
trol over a wide
of uses of a word with a
English language
in the
and Western culture. Here, “Olympic,” promote
intended,
SFAA
use of the word
image
realistic
of homosexual men and women that would
help them move into the mainstream of their communities.
Judge
Ap-
As
Kozinski
observed
dissent in the Court of
peals, just
jacket reading
Strongly
as a
“I
Resent the Draft”
*40
conveyed
message,
would not have
Cohen’s
so a title such as
Accomplished
Gay
“The Best and Most
Amateur
Athletes
Competition”
adequate
would not serve as an
translation
(CA9 1986).
petitioners’ message.
of
The statute thus the USOC endorse particu- while others. Such messages, lar noncommercial prohibiting Boyd has written: James White words, particular we look it is not their translation into state- ‘When pos- equivalence understanding that we should seek but an ments of they represent making changing the for world. . . . Such sibilities ordinary speech operate concepts as restatable but as words do not They replaced a life of their cannot words with and force own. be with definitions, they parts system, they though as were of a closed consti- value, unique resources, mixed fact and and their into tute translation resides destroy their Their meaning other terms would nature. irreducibility. reducibility They oper- but in their to other terms their . . . part gestures, meaning with ate indeed cannot be restated.” White, Meaning Their When Words Lose J. *41 unacceptable the First Amendment.34 is under a scheme govern- “[A]bove that First Amendment means else, all power expression its mes- because of no to restrict ment has subject sage, Police or its content.” matter, its ideas, its (1972). Chicago Mosley, Department 408 U. S. v. (1984) Regan Time, S. 648-649 Inc., v. U. See also publishability (holding determination of that Government “newsworthy message photographs whether based on constitutes content-based discrimination or educational” Amendment). First violation of
D 110(a)(4) may fairly as a statute if be characterized Even directly regulates only speech, its incidental commercial that greater than First Amendment freedoms are restrictions on necessary interest. The further a substantial Government giving proffered for sole interest Government “Olympic” powers sweeping use of is the desire to over the subsidy Respond- provide to the Brief for a financial USOC. necessary to consider whether minimum, At it is ents 24. “Olympic”could not interest in use of the word the USOC’s protected by rights adequately coextensive with those be restriction on use of the Act, some other the Lanham word. § 110(a)(4),the would have author-
In
USOC
the absence
ity
Act to enforce its
trade-
under the Lanham
might
against
cause
uses of the word that
mark
commercial
“Olympic,”
suppression of
particular meaning of
the use
Due to the
may
impact
groups
those
benefit most
has its harshest
on
of the word
defects,
see USOC
v.
use,
debilitating
with
birth
its
such as those
from
Foundation, No.
(Colo., July 1,
Birth
83-539
March Dimes
CA
Defects
Inc.,
Age Olympics,
v. Golden
Opposition
see 1983),
aged,
and the
Virginia
Virginia Pharmacy Bd. Citizens Consumer
62,426.
No.
Cf.
Inc.,
Council,
and a loss of the mark’s distinctiveness.35
confusion
consumer
*42
in-
in
that
is
authority
no
the record
There is
evidence
The
the USOC from economic harm.
protect
sufficient
of
or con-
proof
are barren
history
record and
legislative
noncommercial,
nontrademark
nonconfusing,
clusion that
weakens the USOC’s
way
in
dilutes or
“Olympic”
any
use of
Stop
Olympic
The
Prison v. United States
See
trademark.
Committee,
(SDNY 1980)
1123
1112,
489 F. Supp.
claim
no actual
proof
dilution
because
(dismissing USOC’s
offered,
instance,
for
as to
No
is
injury).
explanation
such
in
in
events
conjunction
how the use
theatrical
“Olympic”
harms
[the
a disclaimer “not associated with
USOC]”
with
Brief
Petition-
of the trademark.
See
for
the economic force
The
uses of
may prohibit
12.
contends that
ers
Court
an
cultivated
“image carefully
because it
protects
Ante, at 541.
is
in
there
no
Again,
proof
the USOC.”
Lanham Act
inadequately protects
the record that
interest
or that the SFAA
image
commercial
its
USOC’s
its
image
speech.36
has harmed the USOC’s
litigation,
filed
action under
Lanham
In this
causes of
Act,
Act,
App.
dilution
the Amateur
the California
statute.
7-14.
speech
any
expressive
that
eco
Nor is there
evidence
SFAA’s
caused
Washing
In
reputational
image.
Spence
harm to the
nomic or
USOC’s
ton,
(1974),
integrity
point,” message likely and “his be was within the Id., the First Amendment.” at 414-415. contours of The Court con- “significantly impaired,” cluded that since the state interest was not Id., Similarly, conviction violated the First Amendment. at 415. in this case, primary purpose convey political message the SFAA’s was to nonmisleading message, symbolic speech in is and direct. This like the Spence, protected by the First Amendment. (CA9) Montgomery Co., See also Bada Co. v. Ward & 426 F. 2d (“[0]ne competitor permitted impoverish language will not be by preventing fairly describing commerce his fellows from their own denied, goods”), cert. S. 916 U. “provides protection The Lanham Act national trademarks order goodwill pro the mark the to secure to owner of of his business and to ability distinguish among competing producers.” tect the of consumers to Inc., S., Fly, Park ’N at 198. U.