# San Francisco Arts & Athletics v. USOC: Why Congress Could Give the Word "Olympic" Away

> The Supreme Court upheld the USOC's exclusive control of the word "Olympic" against a First Amendment challenge and held the committee is not a government actor.

Topic: Trademarks  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/san-francisco-arts-athletics-v-usoc-olympic/


*San Francisco Arts & Athletics, Inc. v. United States Olympic Committee*, 483 U.S. 522 (1987), is the Supreme Court's most important statement on the peculiar, congressionally created trademark in the word "Olympic." When a San Francisco nonprofit tried to stage the "Gay Olympic Games," the U.S. Olympic Committee (USOC) invoked a federal statute giving it exclusive control over the word and won an injunction. The Court, in an opinion by Justice Powell, held that Congress could grant that exclusive right without requiring the USOC to prove any likelihood of consumer confusion, that the resulting incidental burden on expression did not violate the First Amendment, and — by a narrower margin — that the USOC is not a government actor whose enforcement decisions are constrained by equal protection. The decision remains the leading authority on statutory trademarks and on the line between private and governmental action.

## At a glance

- **Case:** *San Francisco Arts & Athletics, Inc. v. United States Olympic Committee*, 483 U.S. 522 (1987), Docket No. 86-270
- **Court:** Supreme Court of the United States, on certiorari to the Ninth Circuit
- **Decided:** June 25, 1987 (argued March 24, 1987); First Amendment holding 7–2, government-action holding 5–4
- **Opinion:** Justice Powell, for the Court (joined in full by Rehnquist, C.J., and White, Stevens, and Scalia, JJ.; Blackmun and O'Connor, JJ., joining Parts I–III); Justice O'Connor concurring in part and dissenting in part, joined by Justice Blackmun; Justice Brennan dissenting, joined by Justice Marshall
- **Subject matter:** Section 110 of the Amateur Sports Act of 1978 granting the USOC exclusive use of the word "Olympic," and whether the USOC's enforcement is state action
- **Holding:** Congress may grant the USOC exclusive use of "Olympic" without a confusion requirement; that grant does not violate the First Amendment; and the USOC is not a governmental actor subject to the Fifth Amendment's equal protection component

## The "Gay Olympic Games" and a statute unlike the Lanham Act

San Francisco Arts & Athletics, Inc. (SFAA), a nonprofit led by Dr. Thomas Waddell, planned to promote a quadrennial athletic competition it called the "Gay Olympic Games," beginning in 1982, and to raise money using that name on shirts, buttons, and other merchandise. The USOC objected and sued to enjoin the use of "Olympic," relying on Section 110 of the Amateur Sports Act of 1978, then codified at 36 U.S.C. § 380. That statute authorizes the USOC to sue anyone who, without consent, uses "Olympic" and related symbols "for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition." The district court granted summary judgment and a permanent injunction for the USOC, and the Ninth Circuit affirmed.

What makes the case doctrinally distinctive is that Section 110 is not an ordinary trademark provision. Under the Lanham Act, an infringement plaintiff must prove that the defendant's use is likely to cause consumer confusion. Section 110 contains no such requirement. The USOC therefore could bar the SFAA's use of "Olympic" for promotional purposes without showing that anyone would mistakenly believe the Gay Olympic Games were sponsored by or affiliated with the USOC. The SFAA argued that reading the statute to dispense with confusion, and to reach an expressive political use of the word, rendered it both a violation of the First Amendment and an unconstitutional exercise of governmental power.

## The First Amendment: an incidental burden on a word Congress could protect

The Court first held that Congress acted within its authority in granting the USOC exclusive use of "Olympic" without a likelihood-of-confusion requirement. Justice Powell reasoned that the word is not a purely generic or descriptive term that must remain in the public domain; rather, "the commercial and promotional value of the word 'Olympic' was the product of the USOC's 'own talents and energy, the end result of much time, effort, and expense.'" Because the USOC and its predecessors had built the word's value, Congress could reasonably choose to protect that value more broadly than ordinary trademark law would, entrusting a single organization with the exclusive right to control commercial and promotional uses.

Turning to expression, the Court acknowledged that the SFAA sought to use "Olympic" to convey a political message about the status and legitimacy of gay athletes, and that the statute therefore restricted some speech. But it held that any such restriction was incidental to Congress's legitimate purpose and did not offend the First Amendment. "The mere fact that the SFAA claims an expressive, as opposed to a purely commercial, purpose does not give it a First Amendment right to appropriate the value which the USOC's efforts have given to the word." Applying the framework of *United States v. O'Brien*, the Court concluded that the incidental restrictions on expression were no greater than necessary to further the government's substantial interest in protecting the USOC's exclusive rights. On this First Amendment question, the Court divided 7–2, with only Justices Brennan and Marshall in dissent.

## The state-action question: a private committee, not the government

The SFAA's remaining argument was an equal protection claim: it contended that the USOC had permitted many other groups to use "Olympic" (the "Special Olympics," the "Police Olympics," and others) but singled out the Gay Olympic Games for enforcement, in effect discriminating on the basis of viewpoint or the sexual orientation of the participants. This argument, however, required the SFAA to show that the USOC's enforcement decisions were government action subject to the Fifth Amendment's equal protection component.

The Court held they were not. Although Congress had chartered the USOC and granted it valuable statutory rights, "the USOC's choice of how to enforce its exclusive right to use the word 'Olympic' simply is not a governmental decision." A federal charter, coordination with the government, and a government-conferred benefit did not transform the USOC into a state actor; the committee remained a private organization whose enforcement choices reflected its own judgment, not governmental policy. Because there was no government action, the SFAA's discrimination claim failed as a matter of law. This portion of the opinion (Part IV) commanded only five votes: Justices O'Connor and Blackmun would have remanded for a determination whether the USOC discriminatorily enforced its rights, and Justices Brennan and Marshall dissented outright, arguing that the USOC performs governmental functions and enjoys such pervasive federal entanglement that it must be treated as a government actor.

## Open questions

*San Francisco Arts & Athletics* left several tensions unresolved. Its holding that Congress may create a confusion-free, quasi-property right in a single word sits uneasily with the ordinary structure of trademark law and with later decisions — such as *Matal v. Tam* and *Iancu v. Brunetti* — that have grown more skeptical of viewpoint-based and content-based burdens on trademark speech. The five-Justice conclusion that a federally chartered organization exercising a statutory monopoly is nonetheless a purely private actor has also been questioned, and the line the Court drew between government-conferred power and government action continues to generate litigation over hybrid public-private bodies. Whether a modern Court would treat the SFAA's expressive, political use of "Olympic" as casually as the 1987 majority did remains genuinely uncertain.

## Implications

- **Statutory trademarks can be broader than Lanham Act marks.** The USOC's right to "Olympic" requires no proof of likelihood of confusion, illustrating that Congress can create special-purpose marks with protections ordinary trademark owners do not enjoy.
- **Expressive purpose does not defeat a valid mark.** A defendant's desire to use a protected word to make a political or social point does not, by itself, create a First Amendment right to appropriate the goodwill the owner built.
- **Federal charters do not equal state action.** A congressionally chartered organization that receives statutory benefits is not automatically a government actor; its enforcement decisions may escape constitutional equal protection scrutiny.
- **The decision predates the modern trademark-speech cases.** Practitioners should read *San Francisco Arts & Athletics* alongside *Matal v. Tam* and *Iancu v. Brunetti*, which reflect a more speech-protective approach to trademark burdens on expression.

## Frequently asked questions

**What did San Francisco Arts & Athletics v. USOC decide?** The Supreme Court held that Section 110 of the Amateur Sports Act, which gives the U.S. Olympic Committee the exclusive right to use the word "Olympic," does not violate the First Amendment even without proof of a likelihood of confusion, and that the USOC is not a governmental actor bound by the Constitution's equal protection guarantee.

**How is this trademark different from an ordinary one?** Congress granted the USOC control over "Olympic" by statute rather than through the Lanham Act, so the USOC need not prove that an unauthorized use is likely to confuse consumers. The word is protected against commercial and promotional uses regardless of confusion.

**Was the USOC's refusal to let the "Gay Olympic Games" use the word unconstitutional discrimination?** The Court said no, because a five-Justice majority found the USOC is a private entity whose enforcement choices are not government action. Four Justices disagreed, and the equal protection claim therefore failed as a matter of law.

## Authorities and sources

- *San Francisco Arts & Athletics, Inc. v. United States Olympic Committee*, 483 U.S. 522 (1987), Docket No. 86-270 (argued March 24, 1987; decided June 25, 1987). [Justia](https://supreme.justia.com/cases/federal/us/483/522/); [Cornell Legal Information Institute](https://www.law.cornell.edu/supremecourt/text/483/522).
- Oral argument and case summary via [Oyez](https://www.oyez.org/cases/1986/86-270).
- Vote alignment, Powell authorship, O'Connor's partial dissent (joined by Blackmun), and Brennan's dissent (joined by Marshall) corroborated by [Wikipedia: San Francisco Arts & Athletics, Inc. v. United States Olympic Committee](https://en.wikipedia.org/wiki/San_Francisco_Arts_%26_Athletics,_Inc._v._United_States_Olympic_Committee) and [The First Amendment Encyclopedia](https://firstamendment.mtsu.edu/article/san-francisco-arts-and-athletics-v-u-s-olympic-committee/).