Brand Protection and Ambush Marketing: London 2012
By Paul Chamberlain & Mark Bateman
In addition to being a celebrated global sporting event the Olympic Games is a valuable brand. As well as the organisers of the 2012 Games being eager to harness the brand's full financial potential, official sponsors will be keen to see their investment protected and their competitors prevented from unofficially associating themselves with the Games, a practice known as "Ambush Marketing".
Ambush Marketing
2012 could be good news for UK businesses both large and small. For those who can avoid paying the large sums required to become an official sponsor, yet still utilise the attention the Games attract, the rewards could be substantial. During the 1992 Albertville Games, American Express ran a highly successful ambush marketing campaign against its rival and official sponsor Visa. They used the slogan, "you don't need a ‘visa’ to go to Albertville" and the campaign was so successful a subsequent poll revealed 33% of those asked believed American Express was the official sponsor.
Perhaps the most famous "ambush" was carried out by Nike during the Atlanta Games. After, allegedly, refusing to pay the rumoured $50 million price to be an official sponsor they hired billboards near stadiums and distributed banners featuring their trade mark 'Swoosh' resulting in substantial television coverage for their brand at a dramatically reduced cost. These are exactly the type of actions the organisers of the 2012 Games are attempting to prevent.
The Law
Various Olympic related terms (including 'London 2012') are registered Community trade marks. In addition, the Olympic brand is protected under copyright, design rights, moral rights, passing off and trade descriptions legislation. Wider protection is afforded to the word 'Olympic' and key symbols, such as the Olympic rings, under the 'Olympic Association Right' (OAR). Introduced by the Olympic Symbol (Protection) Act 1995, infringement of OAR occurs when the Olympic Symbol, motto or the word 'Olympic' or similar words are used in the course of trade without consent.
Greater protection still was provided with the passing of the London Olympic Games and Paralympic Games Act 2006. It creates the 'London Olympic Association Right' (LOAR), at the same time as widening the scope of the existing OAR and gives the London Organising Committee of the Olympic Games (LOCOG) the power to grant licences to sponsors. It also bestows on LOCOG the role of preventing unauthorised associations with the Games.
LOAR goes far beyond the usual protection offered to brand owners and is infringed by any representation in the course of trade that creates a likelihood of association with the London Olympics. Whether an association has been made will be judged by an "overall impression" of the representation. The definition of association is very wide and an association can be made by any advert or merchandise with the combination of words, marks and symbols being judged to determine whether an association has been created.
The 2006 Act also specifies certain "Listed Expressions". These are in the form of two lists, A and B. List A contains the words Games, Two Thousand and Twelve, 2012 and Twenty Twelve. List B contains the words London, Medals, Sponsor, Gold, Silver and Bronze. Use of any word in list A or any word in list A with one or more of the words in list B is not permitted.
Practical Impact
The laws relating to the 2012 Olympics are probably the most restrictive ever in their scope. Arguably, they are going to create real issues for SMEs. An unauthorised advert reading "Supporting the London Games" or "Watch the games at X bar" would fall foul of the 2006 Act. Even if no restricted words are used, the overall impression is considered. It is a defence if the words in combination do not create an association with the Games (an example given by LOCOG is "The Tower of London Gold Jewels Exhibition of 2012"). Further defences to alleged infringements include editorial or incidental use in literary or artistic works. It is also a defence to use a mark that pre-exists the introduction of this new right. Infringement is a criminal offence (maximum fine is £20,000) and civil claims can also be brought giving remedies of injunctions, damages, delivery up of infringing goods and accounts of profits.
Whilst the London games are still years away, businesses should:
- Begin considering how they could benefit from the 2012 Olympics and the people and opportunities it will bring to the UK;
- Seek advice about the legitimacy of any planned advertising, marketing or Olympic related products as early as possible to avoid complications and expensive errors;
Consider becoming an official sponsor. There are different tiers involved necessitating the contribution of differing amounts. Check here for further details and speak to your advisors; - Consider competitors. If your business does become an official sponsor you should be concerned about the possible marketing activities of your competitors. Seek early advice to establish monitoring methods and discuss the legal framework in detail.
If you would like to be kept up to date with legal issues arising as we head to 2012 email us at sportsgroup@davenportlyons.com.
© Davenport Lyons 2007. All rights reserved.
This document reflects the law and practice as at March 2007. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.
