IP Cases & Commentary – Details
1 July 2012
Don't Overstep the Mark! Marketing and the London 2012 Olympics
In our March 2012 newsletter, we looked at some of the principles underlying the Olympic brand and various ways in which the investment of the official partners and licensees, and thereby the Games themselves, are protected. We also gave a brief guide to some of the ‘do’s and don’ts’ of the regulations protecting the signs associated with the Olympic Games. Now just a few weeks away from the big event, we look in a little more detail at some of the special Olympics-related legislation and its impact on marketing activities prior to and during the London Games.
Advertising Regulations: London Olympic Games and Paralympic Games (Advertising and Street Trading etc) (England) Regulations 2011
These regulations, which restrict certain types of advertising and street trading in the vicinity of the London 2012 events, came into force in January 2012 (similar regulations are in force for events in Wales and Scotland). The Advertising Regulations have been drafted particularly to combat so-called ‘ambush marketing’ during the London Games. Ambush marketing is defined in the Regulations as a campaign (whether consisting of one act or a series of acts) intended specifically to advertise goods or services, or a person who provides goods or services, in an ‘event zone’ during an ‘event period’. There is also a non-exhaustive list of what counts as an ‘advertisement’, including non-traditional types of advertising, such as give-aways, distributing or providing articles (eg, t-shirts and flags) for the purposes of promotion, aerial advertising, laser projections and mobile advertising via media such as vehicles.
The Advertising Regulations specify 25 ‘event zones’ where the restrictions are to apply, typically for the period between the day before an event starts until the end of the last day of the event in that location. The London Organising Committee of the Olympic Games (LOCOG) has produced maps which show the precise area and roads within each ‘event zone’. These include areas such as around the marathon, cycle races etc. Essentially, there is a complete prohibition on any form of advertising activity in the ‘event zones’ within the relevant periods, unless authorisation has been obtained from LOCOG. The restrictions will not be limited to London as some of the events are in other locations such as Cardiff and Weymouth, and others (eg, cycling) cover large areas. The police and specially empowered ‘enforcement officers’ will have immediate powers to stop and prevent any unauthorised trading or advertising in the event zones. The penalty for breach of the Advertising Regulations is a fine (on criminal conviction) and this can apply to all those who are directly or indirectly responsible for the advertising activity, ie, the advertiser and potentially the athletes as well. More information and LOCOG’s guidance on the Advertising Regulations are on the official website1.
London Olympic Association Right (LOAR)
This is a civil right, created under the London Olympic Games and Paralympic Games Act 2006, preventing any unauthorised use of “any representation (of any kind) in a manner likely to suggest to the public that there is an association between the London Games and goods or services or a person who provides goods or services”. The LOAR is another temporary right, and is only applicable up to the end of 2012. A ‘representation’ can include combinations of words and images, for example on billboards, or other signage or online advertising, and also non-visual (eg, aural) forms of communication. However, LOCOG must prove that an ‘association’ has been created for there to be infringement. The concept of an ‘association’ between a person, goods or a service and the London Olympics includes, in particular, any kind of contractual or commercial relationship, corporate/structural connection, or sponsorship. In this regard, LOCOG have stated that certain words and imagery, particularly in combination, are likely (in their view) to create a relevant ‘association’. The list includes the following: use of the words ‘2012’ and ‘London’, depiction of Olympic venues or torch, use of the five Olympic colours and depiction of Olympic sports.
There are a number of defences to infringement of the LOAR, including that the materials do not constitute promotional or commercial use of a representation relating to the Olympics and that they ‘accord with honest commercial practices’. Genuine journalistic references are also exempt. LOCOG considers there to be various key factors when assessing whether a defence applies, including whether ‘unfair advantage’ is being taken ‘of the value in the 2012 Games’, and the ‘relevance’ (or irrelevance) of the Olympics to the goods or services being promoted. Sanctions from the Court for infringement of the LOAR include damages, order for disposal or erasure (of an offending sign) and, in appropriate cases, an injunction. Further information and LOCOG’s guidance on the LOAR are available on the official website2.
Advertising by athletes
The Olympic Charter, rule 40, prevents any competitor who participates in the Olympic Games from allowing his person, name, picture or sports performance to be used for advertising purposes during the Games. ‘Advertising purposes’ includes online advertising, including via social networking sites, blogs and viral ads. In the case of advertising featuring a participant who is not a member of Team GB, the approval of both the athlete’s own relevant National Olympic Committee and LOCOG will be required. Some types of advertising benefit from ‘deemed consents’, for example certain references to participants which were widely circulated in the UK continuously since before March 2012. However, deemed consent does not permit the advertiser to create an association with the Games or Team GB, for example in breach of the LOAR.
There is a wide range of potential sanctions against participants/athletes who breach rule 40 including, ultimately, disqualification from the Games and/or withdrawal of their accreditation. Accordingly, the potential consequences are serious, not only for the athletes but also in terms of adverse publicity for any business seen to have encouraged an athlete to breach rule 40. Further information and LOCOG’s guidance on rule 40 are on the official website3.
The impact so far
To date, there have been relatively few reported instances of LOCOG’s enforcement activities, with no cases yet before the courts, but the number of interventions is expected to increase over the coming weeks and will no doubt peak during the Games themselves. So far, there have been press reports about various preparations such as covering up of the ‘Ricoh’ name and logos at the Ricoh Arena in Coventry, which is being used as an Olympic football venue, the disablement of ATMs at venues so that they only take Visa cards, and the ‘cleansing’ of unauthorised logos, etc from fixtures and fittings in the Olympic village. LOCOG has also succeeded in recovering various unauthorised domain names, such as 2012londonolympicgamestickets.co.uk, get2012londonolympictickets.co.uk and mylondon2012.com.
Somewhat more controversial have been the warnings issued to local traders, particularly in towns outside London during the torch relay, over the use of Olympic-themed shop window decorations and, in one case, a café selling ‘Olympic breakfasts’ and ‘flaming torch baguettes’. When promoting a new service for Easyjet, the former Olympic athlete Sally Gunnell was also required to refrain from wearing a tracksuit and holding a Union flag overhead during a photo session, because it was deemed too reminiscent of her triumphant pose when winning gold in Barcelona 1992.
Some commentators have expressed concern that a too heavy-handed approach by LOCOG will stifle the nation’s ability to express its support and enthusiasm for the Games. On the other hand, the protection of the Olympic branding, which forms the foundation of the Olympic marketing programme, is said to be critical to the financial security and stability of the Olympic Movement. It is widely considered that the marketing and advertising restrictions surrounding the London Games are the most stringent there have ever been for any Olympics or other sporting event. Our word of caution is that businesses of all types need to be aware of the extent of the restrictions and potential consequences of breaching them, and to take specific advice if necessary.
There is little doubt that LOCOG and its teams of enforcement officers will have their work cut out for them. Perhaps one of the biggest challenges will be policing infractions which occur online, via viral advertising and social media networks. Coupled with the challenges of transport around London and keeping half an eye on the Games themselves, we are sure to have a summer to remember!