Amicus Curiae Brief — San Francisco Arts & Athletics, Inc. v. United States Olympic Comm.

Supreme Court of the

Octoser Term. 1986

SAN FRANCISCO ARTS & ATHLETICS, INC,

and DR. THOMAS F. WADDELL,

Petitioners,

UNITED STATES OLYMPIC COMMITTEE and

INTERNATIONAL OLYMPIC COMMITTEE,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF AMICI CURIAE OF THE AMATEUR ATHLETIC

UNION OF THE UNITED STATES, INC. THE

NATIONAL ASSOCIATION OF OLYMPIC BUSINESSES,

(Continued within)

IN SUPPORT OF PETITIONER

RANDALL GLENN WICK

Suite 217

230 East I th Street

Costa Mesa, CA 92627

(714) 6314460

RICHARD A, PERKINS

1801 Ave. of the Stars

Suite 406

Los Angeles, CA 90067

(213) 553-2274

Counsel for The

National Association

of Olympic Businesses

*Counsel of Record

for Amici Curiae

JACK R. SNYDER

SCOTT V. KISSINGER

ICE MILLER DONADIO

& RYAN,

th Floor

One American Square

Indianapolis, IN 46282

(317) 236-2100

Counsel for The

Amateur Athietic Union

of the United States, Inc.

MICHAEL RATNER

RHONDA COPELON

CENTER FOR CONSTI-

TUTIONAL RIGHTS

853 Broadway

New York, NY 10003

(212) 614-6464

Of Counsel

Lawyers Grief Service / Legal Publishers / (213) 383-4457 / (714) 720-1510

ADDITIONAL AMICI;

THE CENTER FOR CONSTITUTIONAL

RIGHTS

MARY C. FIGLIULO

KATHERINE J. KREBS

LESLIE H. BALMAIN

ROBERT J. BARNETT

CARL GOODMAN

SUSAN BARNETT

TABLE OF CONTENTS

PAGE

TABLE OF AUrORIT IE 88 1

INTEREST OF AMICI cu RIS . 1

SUMMARY OF AUE Br. 3

ä

1. IN ENACTING THE AMATEUR SPORTS

ACT OF 1978 CONGRESS INTENDED

TO PROVIDE PROTECTION OF THE

MARK "OLYMPIC" COMMENSURATE

WITE THE PROTECTION PROVIDED

TO OTHER FEDERALLY CHARTERED

ORGANIZATIONS WITHIN THE PARAME-

TERS OF THE LANHAM ACT....eeeeeee?

A. IN PASSING THE INITIAL

UNITED STATES OLYMPIC

ASSOCIATION INCORPORATION

ACT OF 1950, CONGRESS IN-

TENDED TO PREVENT

ONLY FALSE DESIGNATIONS

AND FRAUD IN THE USE OF

USOC DESITIGNATIONW GS. 9

B. THE SUI GENERIS PRO TEC

TION WITH RELATED REME-

DIES IN EARLY VERSIONS

OF TEE AMATEUR SPORTS

ACT OF 1978 WERE DELETED

FROM THE FINAL VERSION

OF THE A Cr I1I2

i.

11.

111.

C. THE COMMITTEE REPORTS,

AND LETTERS DEMONSTRATE

THE SPECIFIC INTENT OF

CONGRESS TO PROHIBIT THE

USE OF THE USOC DESIGNA-

TIONS ONLY WHERE THEY

WERE "TENDING TO CAUSE

CONFUSION" AS PROSCRIBED

BY THE LANHAM ACT. Zᷣi 15

D. COMMENTS FROM MEMBERS OF

CONGRESS MADE CONTEMPORA-

NEOUSLY WITH THE PASSAGE

OF THE AMATEUR SPORTS ACT

OF 1978 EVIDENCE A CON-

GRESSIONAL UNDERSTANDING

THAT THE ACT'S AMBIGUOUS

LANGUAGE BE CONSTRUED

PURSUANT TO THE BOUNDARIES

OF OTHER FEDERALLY CHAR-

TERED ORGANIZATIONS AND

THE LANHAM AC. GV 1

THE USUAL STATE STATUTORY

ANTI-DILUTION PROTECTION FOR

STRONG MARKS WAS NOT INTENDED

BY THE CONGRESS ꝑ 3229

THE UNITED STATES OLYMPIC

COMMITTEE SHOULD BE ACCORDED

NO GREATER SCOPE OF PROTEC-

TION FOR THE MARK "OLYMPIC"

THAN ACCORDED OTHER FEDER-

ALLY CHARTERED ORGANIZATIONS

FOR THEIR RESPECTIVE NAMES......34

ii.

PAGE

A. OTHER FEDERALLY CHARTERED

ORGANIZATIONS WITH LESS

GENERIC DESIGNATIONS HAVE

ONLY BEEN GRANTED "EXCLU-

SIVE USE" PROTECTION.......34

1 * THE SCOUTS. „ „ „ „„ „„ „ „ „„ „ „ 36

2 * THE RED CROSS. see eveeee 39

3. THE LITTLE LEAGUE......43

B. THE PROPER SCOPE OF

PROTECTION FOR THE USOC

DESIGNATIONS PARALLELS

THE WELL-ESTABLISHED SCOPE

OF PROTECTION FOR TRADE-

| | Perr TrTrTrTrTrTirirs.

C. DEFENSES RECOGNIZED IN

TRADEMARK CASES SHOULD

ALSO BE RECOGNIZED IN

CASES BROUGHT UNDER

EXCLUSIVE USE STATUTES.....45

IV. THE WORDS OF THE STATUTE

SHOULD BE HARMONIZED WITH

THE CONSTITUTIONAL BOUNDAR-

IES OF THE POWER OF CONGRESS

UNDER THE COMMERCE CLAUSE

AND LIMITED BY THE FIRST

AMENDMENT PROTECTIONS. Ss. . 30

CONCLUSION . . . . . . . „eee eee 000000000 03

APPENDIX 6 6 0 0 e % % % % ,õ,jm0u-̃ eee eee eee ee eee

111.

TABLE OF AUTHORITIES

CASES Page(s)

odph Fastor Bros SF re llr er a) 30

Allied Maintenance

42 N. T. 20 538, 399 N.Y.S.2d

628, 369 N. E. 2d 1162, 198 U.S.

P. O. 418 ee

Boy Scouts of America

any, F.Supp. 1276

(E. D. Pa. eee eee ee ee ee eee een

Boy Scouts of America

o

15 Trade-Mark Rptr. 142 (1926)..37

*

2 Trade-Mark Rptr. 388

(1912) 6 0 0 % % % % %%% % % % %%% 00 0 0030

328 U.S. 193, 90 L. Ed.

1165, 66 S. ct. 932, 69

U. 8. P. O. 215 (1946) 4.640,42

Girl Scouts of the United

States of America et al.

Ve ’

188 F.Supp. 707

(E. D. N. v. eee e eee elle

iv.

PAGE(S)

inc.»

304 F.Supp. 1228

(S.D.N.Y. 196999 2 38,51

67 N. 1. 8. 2d 108

(Sup. Ct. 1946 3336,37

International Olympic Committee

219 CU. S. P. OC. 982

(N. D. Cal. 19862² ⁸2 30

eee

585 (9th Cir. 19866) 29

International Olympic Committee

789 F.2d 1320 (9th Cir. 1986)...52

Little League Baseball

yv. All-American Brush

167 U.S.P.Q. 43 (S.D.N.Y.

1968) SOOT CTOTTTTTTTTT TTT.

Little Leaque Baseball

193 U.S.P.Q. 163 (M. D. FI.

1977) 5 6000000000000 00000000

Little Leaque Baseball

193 U.S.P.0. 611 (M.D.Fl.

1977) Pre rrTTTTTTTTTriIiriyTyT |

P (S$)

hoonen yy pissse! 487 (S.D.N.Y. 19110. 4142

National Association for the

Advancement of Colored People,

aka NAACP v. N.A.A.C.P. Legal

Defense & Educational Fund,

inc.»

753 F.2d 131 (D.C.Cir. 1985)....48

Park 'N Fly

te Dolak Farkand e 0

582, 105 S.Ct. 658, 224

U.S.P.0. 327 CE

Porte Rico Railway, Light ¢

Power v. Mor

’

253 U.S. 345, 64 L.Ed.

944, 40 S. Ct. 516 1920). 26,27

Stop the Olympic Prison

489 F.Supp. 1112, 207

U.S.P.Q. 237 (S.D.N.Y. 1980)....30

United States Olympic Committee

v. Intelicense Corp.,

737 F.2d 263, 222 U.S.P.O.

766 (2d Cir. „eee

United States Olympic Committee

ve Internationa] Federation of

Bodybuilders,

219 U.S.P.Q. 352 (p. p. c.

1982) 5662 „ „ „ „%%% „ „%% % %% %%% „ 360

’

vi.

*

224 UC. 8. P. O. 497 (TTAB

1984) nesecesseessoosoooooeoee

United States Olympic Committee

— II port Apparel. etal. T. B. Virg.

1983) POT rer eee TTT

CONSTITUTIONAL PROVISIONS

United States Constitution,

First Amendment 30,31

STATUTES

Pub. L. No. 805, . 975, 89, 64

Stat. 899 at 901 (repealed,

formerly codified at 36

U.S.C. $379) ccccccccccesccseseeel

60 Stat. 427, as amended,

15 U.S.C. §1051 et seg. 4

36 U. s. c. 87ĩã7d e ß 33549

36 U. 8. c. 5e : ! d 3549

36 U.S.C. 55e 35

36 U.S.C. 590 hh ũẽ k. 35

36 U.S.C. 6371 et g 3

36 U.S.C. 5380 „ „V„8s8 ir

36 U.S.C. 8380 (Ab3vh 4.4936

vii.

PAGE(S)

SS BoBC. SIGE ccccccccccccccccoccccelld

3S U.8.C. gn OC . ccccccccccccccedS

SS CoB.C. GOSS ccccccccccecccccccccccdd

8.8.6. GOS cccccccccccccccccccccedS

9. 8. c. 61301 et .. 23

OTHER AUTHORITIES

Amateur Sports Act of 1978 pass in

Comment,

"Dilution: Trademark Inf ringe-

ment or Will-O'-the-Wisp?",

77 Bary L.Rev, 520 (1964).......31

124 Cong. Rec. 12866

(May 8, 88

124 Cong. Rec. 31660

(September 26, 176% . «c22

124 Cong. Rec. 31670

(September 26, BOVE? coccocecoecoll

124 Cong. Rec. 35646

(October ll, —

124 Cong. Rec. 37069

(October 13, —

V. Devitt,

“Coping With Statutes Which

the Waters” of Trade-

mark Practice,” 11

236, 243-6 . ee

viii.

R. Dickerson,

„ (2d ed. 19986) 4.26

J. Gilson,

510.0114 (1986)....29,35

A. Guttman,

4

H.R. Rep. No. 95-1627, 95th Cong

2d Sess. 10 (1978),

1978 U.S. Code Cong. @

in. News eee ee eee eee

215

asses

Kirk,

“Legal Drafting: The Ambiguity

of and and ot . 2 Texas

Tech. L.Rev. 235 (1970-11 .⁊ĩ 26

I. Lander t.

The _Fublic_Accepts (1941)

(republi 19 eee ee ee e

Model State Trademark Act, 5812

(As amended),

R. Callman,

4 * P- 610 0%/fͤXri1 33

B. Pattishall,

Two Hundred Years of American

Trademark Law,”

eee ee eee

ix.

PAGE(S)

S. Rep. No. 2523, 8lst Cong.,

2d Sess. (195),

dp 1950 U.S. Code Cong.

Serv. eee eee eee

Trademark Act of 1946

(Lanham ACE) ) pas in

United States Olympic Committee

Incorporation Act of 1950........9

* n. 5 6 %%% %%% 46

This brief amici curiae in support

of Petitioners San Francisco Arts &

Athletics (the “SFAA") and Thomas P.

Waddell is submitted on behalf of The

Amateur Athletic Union of the United

States, Inc. (the a“), The National

Association of Olympic Businesses, The

Center for Constitutional Rights, Mary

C. Figliulo, Katherine J. Krebs, Leslie

H. Balmain, Robert J. Barnett, and Carl

Goodm A.

The AAU is an amateur sports

organization which sponsors athletic

competitions and other sports programs

for amateur athletes of all ages. The

1.

National Association of Olympic Busi-

ness is an association of commercial

businesses which use the word olympic

as part of their individual names, but

which do not conduct athletic events.

Mary C. Figlivlio, Katherine J. Krebs,

Leslie H. Balmain, Robert J. Barnett,

Carl Goodman, and Susan Barnett, who

were all either spectators or partici-

pants in the Gay Games of 1982 and

1986.1

In this brief, Amici provide the

Court with information about the intent

of Congress in granting protection to

Respondent United States Olympic con-

ithe qualifications of the AAU, The

National Association of 01 ic

Businesses, The Center or

Constitutional Rights, Ma C.

my mag Katherine J. Krebs, ie B.

in, Robert J. Barnett, Carl

Goodman, and Susan Barnett as Amici are

set forth in detail in the Appendix to

this Brief.

mittee (the Usoc for the words

“Olympic,” “Olympiad,” “Citius Altius

Fortius." and words similar thereto

(the "USOC Designations"). and the

resulting scope of that protection.

SUMMARY OF ARGUMENT

In the decision below, the United

States Court of Appeals for the Ninth

Circuit perpetuated an incorrect stan-

dard of protection for the USOC Desig-

nations. The statutory scheme for

protecting the USOC Designations, set

forth in the Amateur Sports Act of 1978

(the “Amateur Sports ct“), is the

same as that provided for the names of

other federally chartered organizations

and expressly refers to the remedies of

the Trademark Act of 1946 (the “Lanham

236 U.S.C. §371 et seq.

3.

Act") .3

The legislative history behind the

Amateur Sports Act evidences the intent

of Congress to provide the wusoc with

the conventional protection provided

other federally charter Organizations,

ageinst uses by others of phrases

incorporating one or more of the vsoc

Designations. Congress specifically

considered, but deleted by amendment,

@ proposal for providing sui generis

protection for the USOC Designations.

It follows that the usoc Designa-

tions showld not be accorded protec-

tion similar to that provided by state

“anti-dilution" statutes, as the Res-

pondents have argued. In support of

this conclusion, it is noted that the

360 Stat. 427, as amended; 15

99. 8. C. §1051 et seq.

— |e

Amateur Sports Act requires neither an

injury to the business reputation of

the USOC nor the dilution of the dis-

tinctive quality of the USOC Designa-

tions, at least one of which would be a

predicate for a finding of dilution

under state laws. Thus, the Respon-

dent's interpretation of the Amateur

Sports Act as providing anti-dilution

protection seems to beg the question.

Moreover, anti-dilution statutes are

intended to protect strong marks like

XEROX, not weak marks like OLYMPIC. In

fact, when compared with most trade-

marks, the word OLYMPIC can be con-

sidered to have become a generic or

merely descriptive term, incapable of

broad protection in a dilution or 2

trademark sense.

The proper scope of protection

for the USOC Designations should there-

5.

fore be similar to that afforded trade-

Marks under the Lanham Act. The USOC

Designations should be protected a-

gainst confusion, Passing off, and

other forms of unfair competition, but

do not deserve, nor did Congress in-

tend, any stronger protection. More-

over, the scope of protection for the

USOC Designations is further limited

by the affirmative defenses available

to Defendants in infringement actions

brought under the Lanham Act. The

defenses of fair use, laches, and

acquiescence are derived from the

common law of trademarks, and do not

require express mention in the Amateur

Sports Act in order to limit the scope

of protection afforded.

I. A .

N . 5 ACT 1 1 78 CC

ORGANI ZA’ FIONS WITHIE

ARAMETERS OF THE LAN

AL, .

This case presents a very impor-

tant opportunity for the Court to

reassert the requirement that Congres-

sional intent be carefully considered

in construing federal statutes. Care-

ful review of the legislative history

should be required, and such review has

not been made by federal courts previ-

ously construing 36 U.S.C. §380, the

statute providing protection for the

word “Olympic.” This primacy of Con-

gressional intent was emphasized in the

interpretation of the Trademark Act of

1946 (Lanham Act) in the case Park N

7.

189, 83 L.Ed.2d 582, 105 S.Ct. 658, 224

U.S.P.Q. 327 (1985), in which a similar

failure to accord proper consideration

to legislative history was criticized

by the Court.

Of significance is the impact that

the decision in this case will have on

the scope of name protection rights

that will be accorded to federally

chartered organizations other than the

USOC. This question does not appear to

have been addressed by the Court since

the case of FTC v. A.P.W. Paper, 328

U.S. 193, 90 L.Ed. 1165, 66 S.Ct. 932,

69 U.S.P.Q. 215 (1946). There the

scope of protection for the words "Red

Cross" was decided. As a result inno-

cent users of generic words associated

with federally chartered organizations

have been placed in jeopardy.

8.

The passage of the Amateur Sports

Act of 1978 replaced provisions of the

United States Olympic Committee Incor-

poration Act of 1950, including 4a

provision relating to the protection of

the word “Olympic” which read as fol-

lows:

[I]t shall be unlawful for

any person, corporation, or

association eee for the

purpose of trade, theatrical

exhibition, athletic perfor-

mance, and competition or as

an advertisement to induce

the sale of any article

whatsoever or attendance at

an theatrical exhibition,

athletic performance, and

competition or for any bus-

iness or charitable purpose

to use ... the words "Olynm-

pic,” “Olympiad,” or "Citius

Altius Fortius," or any

combination of these words...

„If a person violates the

Provision of this section he

shall be ne guilty of a

misdemeanor....

By enacting the prior statute,

Congress was concerned only with pre-

venting false representations and

fraud, as evidenced by the following

excerpt from a committee report on that

legislation:

One particular problem which

the association is faced with

is the protection of the

Olympic insignia. The Inter-

national Olympic Committee

holds each national Olympic

Committee responsible for

protecting the Olympic name

and insignia from unlawful

use. Thus, in order to pro-

tect its name and insignia

from being used, section 9 of

the bill provides that it

would be a misdemeanor for

‘Pub. L. No. 805, c. 975, §9, 64

Stat. 899 at 901 (repealed, formerly

codified at 36 U.S.C. §379).

10.

any person to falsely or

fraudulently represent bi-

self to be a member or agent

of the organization for the

rpose of soliciting, col-

ect ing. or receiving money

or material, or to wear the

insignia thereof for a fraud-

ulent purpose or to use it

fraudulently in connection

with a commercial purpose. 5

The legislative history associated with

the statute supports an interpretation

of the scope of prohibited uses of

USOC Designations limited to an intent

to defraud in connection with a

commercial purpose.

5s. Rep. No. 2523, Slst Cong., 2d

Sess. (1950), reprinted in 1950 U.S.

Code Cong. Serv. 3787.

11.

An early version of the Amateur

Sports Act of 1978, which was passed by

the Senate, included a provision grant-

ing sui generis protection to the USOC

for the word “Olympic.* It read as

follows:

SEC. 110. (a) Without the

consent of the Corporation

[USOC], any person who -

uses for the purposes of

trade, to induce the sale of

any goods or services, or to

promote any theatrica] exhib-

ition, athletic performance,

ot competition -

D! the words “Olympic,*

"Olympian, * "Olympiad, *

"Citius Altius Fortius," or

any combination, simulation,

12.

or confusingly similar deriv-

ative thereof tending to

cause confusion, to cause

mistake, to deceive, or to

falsely suggest a connection

with the Corporation or any

7 * — activity; shall de

liable in a civil action by

the Corporation for the

remedies provided in subsec-

tion (c) of this section.

(c) When a violation of any

provision of this section is

established in — civil

action arising r this

section, the Corporation

shall be entitled to-

(1) obtain injunctive relief

upon such terms as the court

considers reasonable to

prevent a violation or threa-

tened violation of this

section;

(2) recover the profits

which the defendant accrued

as s result of such viola-

tion;

(3) recover any damages sus-

— by the Corporation;

é

(4) recover costs of the

action, including, at the

discretion of the court, the

amount of reasonable attor-

13.

ney's fees. 6

The sui generis protection listed

in the version of the legislation above

(in subsection c, paragraphs 1-4) pro-

vides remedies especially formulated

for the USOC Designations. It is sig-

nificant that subsection c was subse-

quently deleted and replaced by a

reference to the Lanham Act, as ex-

plained below.

6124 Cong. Rec. 12866 (May 8,

1978).

14.

During Congressional Committee

consideration of the proposed legisla-

tion. the following comments were made

concerning the reasons for changing the

protection provided for USOC designa-

tions:

USOC would be able to protect

certein symbols, emblems,

trademarks, tradenames and

words by civil action pursu-

ant to the Trademark Act of

1946. Currently, the USOC

charter ovides a criminal

penalty for use of certain

symbols, emblems, or words

which have proved to be

unworkable, as to enforce it,

@ criminal intent needs to be

1s.

established.’

The Patent and Trademark Office,

the administrative egency which exam-

ines and issues federal trademark

registrations under the Lanham Act, at

Congressional hearings on the Amateur

Sports Act of 1978 offered illuminating

testimony:

The amendments made by sec-

tion 110 of 8. 2727, to which

our comments are directed,

would add to the list of

desi tions whose unau-

thorized use is prohibited:

* * * (3) a combination,

Simulation, or confusingly

Similar derivation of the

confusion, mistake or —— a

tion, or which would false y

suggest a connection with the

Corporation or any Olympic

activity.

n. u. Rep. No. 95-1627, 95 Cong.,

24 Sess. 10 (1978), 1978

U.S. Code Cong. and W

16.

In lieu of criminal penal-

ties, section 110 provides

that violators shall de

subject to a suit in a civil

action by the Corporation for

the remedies provided in the

Act of July 5, 1946 (60 Stat.

427, 15 U.S.C. 1051 et seg.

—— 5 as the Trademark Act of

1946).

Section 110(a) (4) makes

actionable not only use of

the words “Olympic,” “Olympi-

ad,” "“Citius Altius Fortius,”

and combination thereof,

but also any simulation or

confusingly similar deriva-

tion thereof tending to cause

confusion, to cause mistake,

to deceive, or to falsely

suggest a connection with the

Corporation ot any Olympic

tivity. *

should be inserted before the

word “simulation.*

Section 110 carries forward

some prohibitions from the

1 statute enacted in

17.

to t

Olympic

sup-

¥ respect

activity.6 True

plied.)

The last quoted sentence from the

Commissioner of Patents and Trademarks

indicates his understanding thet the

changes enacted only applied to words

“tending to cause confusion” with

respect to the USOC or its activities.

Since the language “or confusingly

Similer derivation” was removed fror

the Act apparently in response to this

Criticism it is clear thet «a broad

expropriation of all uses of the word

“Olympic” was not intended by Congress.

Bere Congress considered expropriation

te Souse

Judiciary Committee Chairman Danielson) .

18.

of all uses and clearly chose not to do

7

.

1

.

so. This is also demonstrated by subse-

—— 2

quent changes to the language of The

Amateur Sports Act of 1978.

These initial provisions concern-

ing the scope of protections for the

term "Olympic" were modified as follows

by the House acting as the Committee of

the Whole House in what became the

final version of the Act:

SEC. 110. (a) Without the

consent of the Corporation,

any person who uses for the

purpose of trade, to induce

the sale of any goods or

services, or to promote any

theatrical exhibition, ath-

letic performance, or compe-

tition -

(4) the words “Olympic,”

"Olympiad," "“Citius Altius

Fortius,” or any combination

or simulation thereof, tend-

ing to cause confusion, to

cause mistake, to deceive, or

to falsely suggest a connec-

tion with the Corporation or

any Olympic activity;

19.

Page 14, line 3: Strike

"liable" and insert subject

to suit.”

Page 14, line 4: Strike

"subsection (c) of this

section,“ and insert: “the

Act of July 5, 1946 (60 Stat.

427: popularly known as the

Trademark Act of 1946)."9

The final paragraph of the amend-

ments listed above indicates the dele-

tion of sui generis protection in the

subsection c, and replacement with a

reference to the Lanham Act. Thus, it

is clear Congress specifically did not

intend to grant the USOC Designations

sui generis protection and it did

intend these designations be controlled

by the perameters of the Lanham Act.

9124 Cong. Rec. 37069 (October 13,

1978).

20.

d. COMMENTS FROM _MEM-

14 9 0 N

—

JN BP

OUSLY WIT 15

.

TUL POR’

1410

oF 1978 EVID MCE A

Comments made on the floor of

Congress contemporaneously with the

consideration of the Amateur Sports Act

of 1978 evidence an intent that the

statute be viewed in the the same light

of other federally chartered organiza-

tions. The comments concern the chang-

es made in the protections provided

for the USOC designations:

Further, under the bill as

amended, the Olympic Commit-

tee would be able to protect

certain symbols, emblems,

trademarks, tradenames and

21.

words by a civil action

pursuant to the Trademark Act

of 1946.10

The USOC is granted exclusive

use protection, typical in

„ with re-

spect to the Olympic name,

international symbol, gpd

emblem. [Emphasis added.!

The bill significantly ex-

pands the purposes and powers

of the U.S. Olympic Commit-

tee. In addition, the USOC

is granted broadened "exclu-

Sive use" protection with

respect to the Olympic sym

bol, emblem, and name.12

These statements which concern the

USOC Designations being granted protec-

10124 Cong. Rec. 31660 (September

26, 1978) (Comments of Rep. Danielson in

a lengthy summary of various —— of

the Amateur Sports Act of 1978).

11124 Cong. Rec. 31670 (September

26, 1978) (Comments of Rep. Moorhead of

California summarizing the House

Judiciary Committee report on the

Amateur Sports Act of 1978).

12124 Cong. Rec. 35646 (October 11,

1978) (Comments of Rep. Kindness

summarizing various provisions of the

Amateur Sports Act of 1978).

22.

tion similar to the names of other

federally chartered organizations and

subject to the provisions of the Lanham

Act are significant. The statements

demonstrate that at the time of the

Act's passage, members of Congress

considered the passage of the Amateur

Sports Act of 1978 as having boundaries

equivalent to those provided other

federally chartered organizations and

as implemented by the provisions of

the Lanham Act. 13

ot note is the absence of any

legislative history demonstrating a

Congressional intent to apply legal

standards to the Amateur Sports Act of

1978 which are analogous to state anti-

dilution statutes. As of 1983, the laws

in 22 states provide a statutory basis

for dilution protection, but there has

been a divergence of interpretation of

such statutes, and a hesitation to find

dilution without a likelihood of

confusion. See, V. Devitt. “Coping With

Statutes Which ‘ the Waters’ of

Trademark Practice," 11 APLA QO. J. 236,

243-6 (1983).

23.

As enacted, the relevant portions

of the statute reads as follows:

Without the consent of tne

Corporation [usoc], any

person who uses for the

purpose of trade, to induce

the sale of any goods or

services, or to omote any

theatrical exhibition, ath-

letic performance, or compe-

tition-

(4) the words "Olympic,"

""Olympiad," citius Altius

Fortius,” or a combination

Or simulation thereof, tend-

ing to cause confusion, to

cause mistake, to deceive, or

to falsely suggest a connec-

tion with the Corporation or

any Olympic activity; shall

be subject to suit in a civil

action by the Corporation for

the remedies provided in the

Act of July 5, 1946 (60 Stat.

427; popularly known as the

Trademark Act of 1946) .14

The wording used by Congress is

very complex and ambiguous. It is

unclear what words are modified by the

1436 U.S.C. 8380.

24.

cleuse beginning with the present

participle “tending” and including four

prepositional phrases ("to cause confu-

sion," "to cause mistake,” etc.). That

clause probably modifies the predicate

"words" at the beginning of subpara-

graph 4. This interpretation would

mean that the use of the word "Olympic"

is only prohibited when “tending to

cause confusion...." The punctuation is

not consistent with interpreting the

"tending" clause as restricting only

the meaning of the last clause ("any

combination of simulation thereof") in

the series including the word “Olym-

pic." If such a meaning were intended,

the conjunction ot“ should have been

placed between the words "Olympiad" and

"Citius Altius Fortius"; and a semico-

lon should have replaced the comma

25.

after “Citius Altius Fortius.*15 Legal

commentetors have extensively criti-

cized the use of such juxtaposed modi-

fiers in legal instruments, and have

noted the lack of substantive clarity

which may result from references to a

series of nouns. R. Dickerson, The

Fundamentals of Lege) Drafting 101-4,

126-9 (26 ed. 1966); Kirk. “Legal

Drefting: The Ambiguity of ‘and’ and

ot, 2 Texas Tech. L.Rev. 235. 251-2

(1970-1).

A federal statute punctuated and

constructed much like thet in 36 U.S.C.

360 was considered in Porte Rico Rei)-

way, Light 6 Power 253 U.S.

345, 64 L.Ed. 944, 40 &.Ct. 516 (1920).

The statute under consideration in that

ast 640d a6 follows:

15sec, N

Style Manuva) n. 28. n. .

Said district court shall

have jurisdiction of all

controversies where all of

the parties on either side of

the controversy are citizens

or subjects of a foreign

state or states, or citizens

of a state, y tien y | or

district of the United States

not domiciled in Porto Rico

.. III. . 253 U.S. at 347.)

The Court in Porto Rico concluded

that the modifier “not domiciled in

Porto Rico” applied to aliens as well

as to American citizens, and modified

each of the phrases in the series

preceding it. The Court in that case

carefully evaluated the intentions of

Congress, and construed the ambiguous

statute accordingly. The Porto Rico

case provides strong precedent for

construing 36 U.S.C. $380 as prohibit-

ing uses of USOC designations only for

uses “tending to cause confusion. . ."

with USOC activities.

27.

Congress expressly recognized the

need to provide Protection to the usoc

from unfair competition by others using

the USOC designations. This protection

was envisioned as placing the Committee

on an equal footing with other feder-

ally chartered organizations. This

Congressional intent, combined with the

explicit reference to the Lanham Act,

indicates that the "Olympic" mark is to

be accorded a scope of protection

commensurate with the “likelihood of

confusion" standard applied in like

circumstances for other marks. There

ere @ large number of existing feder

@lly chartered organizations that have

Similar Statutory protection for their

respective names, 16

and Practice, $10.01

The USOC has argued in this case,

and various courts have concluded in

the past, that the standard to be used

in protecting the USOC Designations is

the same standard as that used in

protecting certain marks under state

anti-dilution statutes. That argument

must fail in light of the purpose of

anti-dilution statutes and the peculiar

facts of this case.

The cases which have considered

the scope of protection to be accorded

to the word “Olympic” are: Interna-

fiona) Olympic Committee v. San Fran-

Sisco Acts 6 Athletics, 781 F.2d 733,

United States Olympic Committee vy.

iIntelicense Corp., 737 P.2d 2634, 222

U. 8. P. 0. 766 (24 Cir. 19864); Interna-

fiona) Olympic Committee vy. San Fran-

Sisco Arts § Athletics, 219 0.8. p. o.

982 (N.D. Cal. 1982); Ex Parte Olympia

Brewing Co., 2 Trademark Rptr. 366

(1912); Step the Olympic Prison vy.

United States Olympic Committee, 409

F.Supp. 1112, 207 U.S.P.0. 237 (8. p.

*. 1. 1980); Qnited States Olympic

Of Bodybuilders, 219 U. S. P. . 352

b. b. C. 1982); Onited States Olympic

Committee v. Olympic Herrenwasche-

fabriken Benger, 224 U. S. P. o. 497 (TTAB

1964); United States Olympic Committee

YoUNion Sport Apparel, et l. 220

U. S. P. o. 526 (B.D. Virg. 1983).

Anti-dilution statutes are intend-

ed to prote “strong” marks egeinst

the loss of the distinctiveness or

30.

identity of such marks. Allied Mainte-

nance v. Allied Mechanica) Trades, 42

N.¥.24 538, 399 K. v. 5. 20 628, 369

*. E. 2d 1162, 198 U.S.P.Q. 418 (1977),

Comment, “Dilution: Trademark Infringe-

ment of Will-O'-the-Wisp?*. 77 Bary.

Ann, 520 (1964). The mark “Olympic*

cannot be considered a strong mark

given its historical origins and common

meanings. It would be eligible for

only minimal, if any. protection under

a typicel anti-dilution statute. v.

Devitt. s at 244. Also, any cleis

by the USOC to exclusivity of

Gistinctiveness must be tempered by the

fact that, in 1950, 22.500 commercial

enterprises in the United Stetes hed «a

prior legal right to describe thenm-

31.

Selves as Olympic.17? to emphasize the

weakness of the word OLYMPIC, one need

only contrast it with ® truly strong

mark such as XEROX or KODAK.

In addition, the language of the

Amateur Sports Act does not at all

resemble the language typicelly found

in anti-dilution Stetutes. For exan-

ple, Section 12 of the Model State

Trademark Act provides relief in the

absence of confusion or competition

only when the plaintiff can establish

"an injury to business reputation or

«++ Gilution of the distinctive qual-

ity of a mark."18 In the absence of

Similar language in the Amateur Sports

Act (or support in the lecislative

history), it is difficult to see the

basis upon which Respondents claim

anti-dilution protection. To the

contrary, their interpretation of the

18*Likelihood of injury to business

reputation or of dilution of the

distinctive quality of a mark registered

under this Act, or a mark valid at

common law, or a trade name valid at

common law, shall be a ground for

injunctive relief notwithstanding the

absence of competition between the

parties or the absence of confusion as

to the source of good or services.

Model State Trademark Act 512 (As

Amended), reprinted in R. Callman, The

Bonepol ies $40.35, x „ Pp. 293

1984).

33.

Amateur Sports Act to provide anti-

dilution protection seems to beg the

question.

111.

Express federal Statutory protec-

tion has been Provided for the names

associated with many federally char-

34.

tered organizations.19 However, many

other federally chartered organizations

do not have such statutory protec-

tion.20 Since Congress intended the

USOC Designations to have no more. than

the protections provided other

federally chartered organizations, the

protections provided should be no

greater than those of other similarly

at for example, 36 U.S.C. §691

— 3 of America); 36

2.58 6150

seq. (National Ski

Patrol System).

20 See, for example, 36 U.S.C. §691

et seq. — ae of America); 36

U.S.C. §150 seq. (National Ski

Patrol System).

Situated Organizations. A study of

decisional law as related to analogous

Organizations is instructive.

1. TRE scouts

The Boy Scouts and Girl Scouts

have been given express protection for

their various Organizational marks.

Each of the cases considering the scope

of protection has focused on likely

confusion and has considered evidence

of confusion. For example, in Adolph

Kastor & Bros. v. FIC, 138 P.24 824

(2nd Cir. 1943), defendant Kastor was

Selling "Scout" knives that were not

endorsed or approved by the Boy Scouts.

In enjoining Kastor from further use of

the mark SCOUT on its knives, Judge

Learned hand held that "the Boy Scouts

have a cognizable interest in prevent-

ing such possible confusion." 138 F.24

at 625. See also, In Re Boy Explorers

36.

of America, 67 R. r. s. 2d 108 (Sup. Ct.

1946)) ("There is no real danger that the

general public might be misled and

confused by the use of the name Boy

Explorers of America, Inc. 67 N.Y.S.

zd at 111); Boy Scouts of America vy.

Teal, 374 F.Supp. 1276 (E. d. Pa.

1974) ("Here virtually every indicium of

Scouting is being misappropriated by

Gefendants in representing themselves

to the public, to contributors and even

to the United States Navy, as a recog-

nized Sea Scout unit." 374 F.Supp. at

1279); Boy Scouts of America vy. Win-

chester Repeating Arms Co., 15 Trade-

Mark Rptrc. 142 (1926) ("To now permit the

applicant to register the word scout

as part of its mark would enable it to

place upon the market a knife which

would doubtless be regarded as a knife

for Boy Scout use and

37.

confusion in the trade would be the

natural and probable result of such

action." 15 Trade-Mark Rptr. at 143);

itl Scouts of the United States of

America et al. v. Hollingsworth. 188

F.Supp. 707, 127 U. S. P. 0. 271 (E. d.

N. T. 1860) (erhe logical consequence of —

the defendant's acts and conduct is such

as to cause deception." 188 F.Supp. at

715); Girl Scouts of the United States

of America v. Personality Posters Mfc.

Co... Inc.» 304 F.Supp. 1228, 163

U. S. P. O. 505 (S. b. x. v. 1969) (Dy granting

the Girl Scouts the sole and exclusive

right to have and use its emblems,

badges, marks, etc., in carrying out its

purposes, “Congress intended only to

protect the public and the Gir) Scouts

from the confusing or illegitimate use

of plaintiff's Symbols by those who

might compete with it in

38.

its normal purposes and endeavors."

304 F.Supp. at 1232. Thus, the bsoc

Designations by analogy should be

granted no greeter protection.

Quite properly, the focus in each

of the above cited cases was on the

possibility of confusion, possibility

of deception, false claims of endorse-

ment ot approval, or unfair competi-

tion. None of the cases cited above

applied anti-dilution law standards to

Getermine the scope of federal protec-

tion to be granted for words used by

the Boy Scouts or Girl Scouts. There

is no reason why the federal protection

granted to the USOC should be construed

more broadly than the protection pro-

vided to the Boy Scouts and the Girl

Scouts.

39.

The Red Cross Organization has

been given Protection for the marks

used by it. The words "Red Cross" have

been used by many different commercial]

businesses for many years, including

extensive use by Johnson & Johnson for

their entire line of Surgical dressings

and allied products. 21 The power of the

FTC to regulate use of the words "Red

cross,“ for persons who used the words

(ir particular, for toilet tissue and

paper towels) prior to Statutory prohi-

bition, was considered in PTC v. A.P.W.

Paper, 328 U.S. 193, 90 L.Ed. 1165, 66

S.Ct. 932, 69 U.S.P.Q. 215 (1946). The

Court construed the congressional]

concern in prohibiting use of the words

"Red Cross" as being "not only with

211. Lambert, The Public Accepts

(1941) (republished in 1976) .

40.

protecting the Red Cross against pre-

tenders but also with protecting the

public against the false impression

that goods purchased were the products

of the Red Cross or were sponsored by

it." Ig. . 328 U.S. at 198. An earlier

case considered the use of a Red Cross

emblem and the words "Red Cross Hy-

gienic“ on toothbrushes, where usage

commenced after the statutory prohibi-

tion, but was related to previous

usage. Loonen v. Dietsch, 189 F. 487

(S. D. N. 1. 1911). Judge Learned Hand

explained that commercial uses of "Red

cross“ before 1905 “arose from the fact

that the Red Cross Society was con-

cerned with field surgery and with the

care of, and supplies for, the sick and

wounded in battles and great public

catastrophes.” Id., 189 F. at 488-9.

41.

It is significant that the Court

in A.P.W. Paper recognized that the

congressional intent in restricting the

use of the words "Red Cross" was to

protect against pretenders and false

impressions of sponsorship. The same

intent has motivated Congress to pro-

tect the USOC Designations, and the

reach of 36 U.S.C. §380 should be

limited to protecting against pretend-

ers and false impressions of sponsor-

ship. Moreover, there is reason to

provide less protection for "Olympic"

than for "Red Cross." As Judge Hand

noted in Loonen, commercial uses of

"Red Cross" arose because of the activ-

ities of the Red Cross Society. Howev-

er, the word "Olympic" has extensive

historical meaning beyond the activi-

ties of the USOC or IOC, and the intent

of Congress must be interpreted in the

42.

light of the ancient source, and mean-

ing behind, the word olympic, as con-

trasted with the modern source and

derivation of "Red Cross.”

3. THE LITTLE LEAGUE.

The cases construing the federal

statutory protection for the name

"Little League“ also look to evidence

of the likelihood of confusion. Little

League Baseball v. All-American Brush,

167 U.S.P.Q. 43 (S.D.N.Y. 1968); Little

Leaque Baseball v. Daytona Beach Little

League, 193 U.S.P.Q. 163 (. p. FI.

1977); Little Leaque Baseball v. Day-

tona Beach Little League, 193 C. S. P. O.

611 (u. Dp. 1. 1977).

In each of the analogous organiza-

tions discussed above, the courts have

provided no more than exclusive use

protection. Clearly, USOC Designa-

tions, terms with a generic history,

43.

should be accorded no greater protec-

tion.

The trend that emerges from cases

in which the scope of "exclusive use“

rights has been determined points

toward protection that parallels that

given trademarks under the common law

and the Lanham Act -- no more and no

less. That trend should not be surpri-

Sing: trademark rights are also "exclu-

sive" rights and courts have many years

of experience in deciding the limits of

"exclusive" trademarks rights. It is

thus altogether logical that the usoc

Designations be given this common form

of protection.

44.

Most important, however, is that

the USOC Designations will not suffer

with the trademark standard of protec-

tion. The USOC, and the public, will

still be protected from confusion,

passing off, and unfair competition.

In sum, the USOC, and the public, will

still be protected to the same extent

that trademark owners and the public

are currently protected under the

Lanham Act. There is no reason to

believe that that level of protection

is insufficient.

C.

Respondents have argued that

certain defenses available under the

Lanham Act are not available to Defen-

45.

Gants such as Petitioners because the

Amateur Sports Act refers only to the

remedies provided by the Lanham Act.

By the same token, it could be argued

that common law defenses have not been

Prohibited by the Amateur Sports Act.

In any event, Respondents appear to

misunderstand the nature of the defens-

es available to a defendant in a trade-

mark infringement suit. While it is

true that several defenses are enumer-

atec in the Lanham Act, this merely

makes clear that so-called incontesta-

ble marks are not exempt from such

defenses. Many of those Gefenses had

their genesis in the common law of

trademarks, and are natural limitations

on the rights of trademark owners.

It is thus only reasonable that

the Lanham Act defenses, as well as the

common law defenses, apply to actions

46.

brought under statutes such as_ the

Amateur Sports Act. If a wore is capa-

ble of describing something, as the

word Olympic is, then the "fair use in

description" defense should be availa-

ble to protect the rights of the public

in that word. In this regard, it is

not unreasonable to conclude that the

word CLYMPIC has become generic with

respect to, or at least descriptive of,

multi-event competitive activities.

The Oxford English Dictionary gives

examples of usage of the word OLYMPIC

as early as the 1600's in contexts

other than a quadrennial international

multi-event sports competition. As

much as Respondents USOC and IOC would

like to believe that the word OLYMPIC

is proprietary in the same manner that

XEROX and KODAK are proprietary to

their owners, the fact remains that the

47.

word OLYMPIC has been in the English

language for hundreds of years and,

act of Congress or not, remains in the

English language eligible for unlimited

use in its generic and descriptive

senses.

Similarly, if the holder of the

"exclusive use" rights is guilty of

laches or has acquiesced in an other-

wise infringing use, those equitable

defenses should be available to a

defendant.22 Finally, prior use should

always be available as a defense, as

22See, e.g., National Association

„ 753 F.2d 131

(D. c. ir. 1985) (NAACP guilty of laches

in bringing suit against Fund; Fund

permitted to continue using "NAACP" in

its name).

48.

trademark rights arise from use. 23 In

sum, there is nothing in the language

of the Amateur Sports Act, or in the

legislative history preceding its

enactment, to indicate that defenses

which inhere in the very nature of

exclusive rights, such as those granted

in the Amateur Sports Act, should be

denied to defendants.

23rhis defense is expressly

recognized in the Amateur Sports Act; 36

U.S.C. §380(a). This express provision

was probably included to avoid problems

involving a governmental tak ing“ of

property that might result if the

property rights in marks arising prior

to the enactment of the statute were

terminated. "Grandfather" clauses are

somewhat common in the federal exclusive

use statutes. See, e.g., 36 U.S.C. §27

(Boy Scouts); 36 U.S.C. 836 (Girl

Scouts).

49.

IV. THE WORDS OF THE STATUTE

SHOULD —

XB. TER. Se

BOUNDARIES OF THE POWER

OF _CONGRESS _UNDER __THE

COMMERCE __CLAUSE__AND

IM Y E.

AME NT _P IONS

Congress is limited in its power

to enact legislation and exert re-

straints based on the powers granted to

it in the Constitution and denied to it

by the Bill of Rights. Early trademark

Statutes enacted by Congress under the

Patent and Copyright Clause were de-

clared unconstitutional as an unauthor-

ized extension of power. 24 The federal

Statute prohibiting unauthorized use of

the Girl Scouts name was construed as

not prohibiting a lampooning use of the

~~

24see, B. Pattishall, “Two Hundred

Years of American Trademark Law." Two

51-

79 (1976).

50.

name, and a state statute was declared

(in dicta) to be limited by the First

Amendment protections. Girl Scouts of

U 2 L. E —

ality Posters Mfg. Sens 304

F. p. 1228 (S.D.N.Y. 1969).

An analogous illustration makes

clear the unallowable extension of

power by Congress. For example, even

if Congress should decide that football

requires regulation, it would not have

the Constitutional authority to estab-

lish a Federal Football Committee as a

federally chartered organization with

exclusive rights to the word "Foot-

ball." There is no Constitutional

provision granting Congress the power

to withdraw the word "football" from

the U.S. vocabulary, and to prohibit

individuals from forming a "football

team" or playing a “football gane“

51.

except by leave of a Federal Football

Committee. Such powers are anathema to

the U.S. system of limited government,

and challenge the underpinnings of U.S.

individual rights protections. Inter-

national Olympic Committee v. San

Francisco Arts & Athletics, 789 F.2d

1320 (9th Cir. 1986) (dissent from

Geniél of petition for rehearing en

banc).

52.

CONCLUSION

It would be a great distortion of

the existing statutory scheme for

protect ing the rights of federally

chartered organizations, and would be

contrary to Congressional intent, to

exert restraints on the use of the mark

"Olympic" beyond that provided under

the likelihood of confusion test as

used in the Lanham Act.

Respectfully submitted,

RANDALL GLENN WICK

230 East 17th Street

Suite 217

Costa Mesa, CA 92627

(714) 631-4460

Counsel of Record for Amici

Curiae

JACK R. SNYDER

SCOTT V. KISSINGER

ICE MILLER DONADIO & RYAN

One American Square, 34th Floor

Indianapolis, IN 46282

(317) 236-2100

Counsel for The Amateur Athletic Union

of the United States, Inc.

(Continued on next page)

53.

RICHARD A. PERKINS

1801 Avenue of the Stars

Suite 406

Los Angeles, CA 90067

(213) 553-2274

Counsel for the National Association of

Olympic Businesses

MICHAEL RATNER

RHONDA COPELON

CENTER FOR CONSTITUTIONAL RIGHTS

853 Broadway

New York, NY 10003

(212) 614-6464

Of Counsel

54.

APPENDIX

APPENDIX

INTERESTS OF AMICI CURIAE

This brief amici curiae is submit-

ted on behalf of The Amateur Athletic

Union of the United States, Inc., the

Center for Constitutional Rights, and

participants and spectators at the 1982

and 1986 Gay Games.

THE AMATEUR ATHLETIC UNION OF THE

UNITED STATES, INC. (the “"AAU") is a

non-profit amateur sports organization

which was founded in 1888 for the stat-

ed purpose of providing “amateur sports

programs and physical fitness for all

people -- all classes -- all ages. The

AAU has over 80,000 volunteers in 50

associations conducting programs in 31

sports for over 200,000 registered

athletes of ages 8 to 80. The AAU is

recognized as a national governing body

under 36 U.S.C. §391. The AAU is the

55.

owner of the federally registered

trademark AAU JUNIOR OLYMPICS and has

conducted AAU Junior Olympics competi-

tions since 1948.25 Recent AAU JUNIOR

OLYMPIC competitions have involved more

than one million young athletes partic-

ipating in 21 different sports.

THE NATIONAL ASSOCIATION OF OLYM-

PIC BUSINESSES is an unincorporated

association of commercial businesses

which use the word olympic as part of

their individual business names, but

which do not conduct athletic events.

25The AAU believes that its use of

the AAU JUNIOR OLYMPICS mark prior to

1950 exempts current use of the mark

form the Amateur Sports Act virtue of

the grandfatber“ clause set forth at 36

U.S.C. §380(a). Nevertheless, the AAU is

vitally interested in see that the

Amateur Sports Act be

— order to provide the AAU

with broadest possible scope of

rights with respect to the AAU JUNIOR

OLYMPICS mark.

56.

The National Association of Olympic

Businesses presents the perspectives

of the class of businesses which would

like to use the word olympic without

suggesting a connection with athletic

events conducted by Respondents Inter-

national Olympic Committee or United

States Olympic Committee. It is be-

lieved that there exist a large number

of businesses in this class, such as

restaurants, record stores, and pizza

parlors, which use the word olympic as

part of their individual respective

names, but which do not conduct athlet-

ic events. Among the businesses

consenting to the use of their of their

names in this brief are: Olympic Camera

of Los Angeles, California; Olympic

Homes, Inc. of Portland, Oregon; Olym-

pic Packaging of Mundelein, Illinois;

Olympic Medical Corp. of Seattle,

57.

Washington; Olympic Delivery Services,

Inc. of Boston, Massachusetts; Olympic

Packaging Co., Inc. of Brea, Califor-

nia; Olympic Housewares, Inc. of North

Kansas City, Missouri; and Olympic

Laundry and Cleaners of Port Angeles,

Washington.

Mr. Leo Oliver LaBranche, Jr., is

the organizer of The National Associa-

tion of Olympic Businesses. Mr.

LaBranche is a songwriter and phono-

graph record producer who has a busi-

ness using the name OLYMPIC RECORDS,

and is plaintiff in an action LaBranche

v. USOC, CV-85-481-RG, now on appeal to

the Ninth Circuit, No. 85-6484. A

Petition for Writ of Certiorari to the

United States Supreme Court was filed

in that case by attorneys for Mr.

LaBranche on December 2, 1986.

58.

THE CENTER FOR CONSTITUTIONAL

RIGHTS ["CCR"] is a non-profit litiga-

tion and educational organization.

Founded in 1966, to provide legal sup-

port in the southern civil rights move-

ment, CCR has been a national resource

for civil rights and social justice.

Secvring access to full rights for all

lesbians and gays has been a priority

for CCR.

MARY C. FIGLIULO, KATHERINE J.

KREBS, and LESLIE H. BALMAIN were

participants in the 1982 Gay Games and

KREBS and BALMAIN also participated in

the 1986 Gay Games, and both these 1982

and 1986 events were conducted by

Petitioner San Francisco Arts & Athlet-

ics. ROBERT J. BARNETT and CARL GOOD-

MAN were spectators at the 1982 and

1986 events, and SUSAN BARNETT was a

spectator and volunteer organizer in

the 1986 event. 59.

The participation and attendance

of these individuals at the Gay Games

of 1982 and 1986 came as a result of

their belief that an international

Olympic competition of gay and lesbian

athletes would project a wholesome and

healthy perspective to the public in

the face of concerted international

attacks upon their civil rights. These

individuals desire to attend and par-

ticipate in future "Gay Olympic Games."

60.

: * * * j Me

Tene 3 . eo : N f

— 59 — — 0 N a 3 2 4

- * i. r + ¢ 2

-

„

*

;

.

*

—

f ar * 2 22 — e

2 . > * N 8

7 e t r wt, * = — N 4 . - 2

4 5 i » *