The efforts of the organisers of the London Olympics to combat ambush marketing come under scrutiny
What has the country come to when an 81-year-old knitting fan from Norfolk is banned from selling a £1 doll at her church coffee morning due to Olympic copyright laws? It was reported in the press in May that Joy Tomkins dressed a secondhand, 25cm doll in a homemade knitted T-shirt and shorts featuring “GB 2012” and the Olympic rings logo. However, she had the foresight to check with trading standards officers who warned that she would be breaking the law if the doll were sold, and it was withdrawn from sale.
The Olympic Games have long been considered a golden opportunity for big companies, such as well known sports brands Adidas, the official London 2012 sponsor, and rivals Nike, to compete for brand domination and the media spotlight. However, businesses that are not official partners of London 2012 could find themselves infringing the London Olympics Association Right if they use advertising to suggest to the general public that there is an association between the London Olympics and their goods, services or business.
The Association Right
The Olympic Symbols etc (Protection) Act 1995 created the Olympics Association Right, and states that it is an infringement of that right to use either the Olympics symbol (meaning the five interlocking rings), the Olympics motto (“Citius, Altius, Fortius”) and any protected words in the course of trade without authorisation, subject to certain limited exceptions.
Effective from 30 May 2006, the London Olympic Games and Paralympic Games Act 2006 states further that certain combinations of words used together by advertisers could potentially infringe the London Olympics Association Right. Advertisers would therefore be well advised to stay away from using any two of the following terms together: “Games”, “Two thousand and twelve”, “2012” and “Twenty twelve”. Neither should they use any of those terms in conjunction with any of: “Gold”, “Silver”, “Bronze”, “London”, “Medals”, “Sponsors” or “Summer”. Only official sponsors and licensees are allowed to use these combined terms as part of their promotions without a risk of breaching the London Olympics Association Right. Unauthorised commercial use of the Games’ marks (or any other marks or logos that are confusingly similar to or likely to be mistaken for them) could result in a substantial fine.
London 2012 said it understands some cases of unauthorised use of its brands are a result of “pure enthusiasm for the Games”. Yet, Lord Coe, chairman of the London Organising Committee for the 2012 Games, has defended such strict policing of the use of Olympic brands, saying that strict controls were necessary and important to enable the UK to afford to host the Games. The UK’s ability to stage the Games is largely due to the ability to bring sponsors to the table and, without effective brand protection, companies simply would not be interested in paying large amounts of money to become official sponsors.
Sponsorship, particularly of large sporting events, has become big business over the years. Nonetheless, brands that are unwilling, or unable, to pay for official sponsorship status may resort to alternative means of associating themselves with the Games. “Ambush marketing”, a phenomenon that first arose at the Los Angeles Olympics in 1984 when Kodak sponsored TV broadcasts of the Games as well as the US track team despite Fuji being the official sponsor, is quickly becoming an attractive alternative.
Ambush marketing describes activities undertaken by commercial bodies not sponsoring an event that nevertheless suggest they or their products are associated with the event, or which seek to exploit the interest in the event for commercial purposes by exposing their brands to spectators at the event or viewers of event broadcasts, without paying for an official designation.
Other notable sporting events affected by ambush marketing have included the Sydney 2000 Olympics, where Qantas Airlines’ slogan "The Spirit of Australia" sounded strikingly similar to official Games sponsor Ansett Air’s slogan "Share the Spirit", and, most recently, the 2012 European Championships, where Denmark striker Bendtner displayed the logo of an Irish betting company on the waistband of his underpants after celebrating scoring a goal.
In terms of s 19 of the 2006 Act, the London Olympic Games and Paralympic Games (Advertising and Street Trading) Regulations have been introduced in an effort to enhance the protection afforded to official sponsors’ brands and provide a tougher stance against potential ambush marketing. The regulations will place temporary restrictions on advertising and trading in certain “event zones” during “event periods” only, and the London Organising Committee must generally authorise such activity, subject to certain limited exceptions.
Traders committing offences under the regulations may be subject to civil or criminal prosecution, as well as the seizure and detention of infringing articles. Similar regulations will also be introduced in Wales and Scotland, where some London 2012 events are due to take place. Such marketing rights could represent a potential minefield for traders, as many businesses will be planning offers and events “to get into the spirit of things”, without appreciating the extent of the new statutory regulations preventing and restricting them.
Lord Coe has emphasised that “our first port of call on this has always been education rather than litigation, and largely that is what we have done”. However, it seems that the Olympic Committee will protect their sponsors at all costs, even if it means, as Mrs Tomkins suggested, knitters will have to stitch “Global gathering of top athletes in England’s capital this year”.
Oliver Tidman is an IP associate at Alistair Hindle & Associates Ltd and tutor in commercial and IP law at the University of Edinburgh