Fewer than 100 days, and counting ....

With less than one hundred days to go until the London 2012 Opening Ceremony on 27 July, everyone should be aware of the potential impact the Olympic restrictions can have on commercial activity. In the attached note we bring together the various anti-ambush marketing rules in place to safeguard the Olympic brands, protect official sponsorship rights and regulate general marketing and trading activity before, during and after the London 2012 Olympic and Paralympic Games (the Games). In addition, we look at the various guidance notes that have been issued by the London Organising Committee of the Olympic and Paralympic Games (LOCOG) which set out how these protections will be applied, and give examples of the types of activities that will and will not be acceptable. This can affect not only advertising, but a broad range of commercial activities.

The key areas that LOCOG and the legislation focus on are as follows:

  • Advertising and Trading Regulations
  • Statutory Marketing Rights
  • Use of Athletes
  • Restrictions on Suppliers
  • Conferences and Events
  • Tourist Industry
  • London 2012 Festival, Inspire and the Cultural Olympiad
  • Betting Guidance

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Full Article

Fewer than 100 days, and counting ....

With less than one hundred days to go until the London 2012 Opening Ceremony on 27 July, everyone should be aware of the potential impact the Olympic restrictions can have on commercial activity. In the attached note we bring together the various anti-ambush marketing rules in place to safeguard the Olympic brands, protect official sponsorship rights and regulate general marketing and trading activity before, during and after the London 2012 Olympic and Paralympic Games (the Games). In addition, we look at the various guidance notes that have been issued by the London Organising Committee of the Olympic and Paralympic Games (LOCOG) which set out how these protections will be applied, and give examples of the types of activities that will and will not be acceptable. This can affect not only advertising, but a broad range of commercial activities.

The key areas that LOCOG and the legislation focus on are:

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Are you in the Zone? Advertising and Trading Regulations

The Advertising & Trading Regulations apply to all those who are directly or indirectly responsible for advertising activity. This includes those who actually engage in advertising activity and those who arrange for it to take place.  It also includes those who are responsible for goods and services that are being advertised and those who own, occupy or manage land on which the advertising activity takes place.

Whilst unlikely to affect much 'business as usual' advertising, such as shop signs and in-store advertising, the London Olympic Games and Paralympic Games (Advertising and Trading) (England) Regulations 2011 (the Advertising & Trading Regulations) bring in temporary restrictions to advertising and trading in designated open public places, within a few hundred metres around competition venues (Event Zones) in specific periods during and in the run-up to the Games that correspond with when a particular venue is being used for Games events (Event Periods). Maps setting out the Event Zones, along with details of the relevant Event Periods, can be found here.

Subject to limited exceptions, advertising and street trading in the Event Zones and during the Event Periods will only be permitted if specifically authorised by LOCOG. All advertisers and traders intending to operate in any Event Zones during the relevant Event Periods should have already submitted an application to LOCOG. Obviously, even those who have been granted an authorisation by LOCOG, will need to consider whether any other consents and authorisations (for example, planning consent) are required to undertake the proposed advertising.

Look out it's an Ambush - Statutory Marketing Rights

To prevent ambush marketing and the interests of official sponsors, in addition to the usual legal channels of protection including trade mark registrations, design registrations, copyright and passing off, there are two pieces of Olympic-specific legislation which provides an additional layer of protection through stringent restrictions on the use of Olympic related words, symbols and associations without a licence from the relevant official body.

LOCOG has issued extensive guidance on the application of the 1995 and London 2006 Acts  Brand protection and  Business – what you need to know for businesses and equivalent  guidance for non-commercial bodies. These guidance notes include specific examples of the types of activity which LOCOG regard as infringing or not infringing.

The Olympic Symbol etc. (Protection) Act 1995 (1995 Act)

The 1995 Act created the "Olympics association right".  This confers exclusive rights on the British Olympic Association ("BOA") in relation to the use of the Olympic symbol; the Olympic motto; certain protected words; and any Paralympic Games equivalents.

The Olympics association right is infringed where a person uses, in the course of trade, these or something so similar as to be likely to create in the public mind an association with the Olympics (a "controlled representation"). An "association" includes any kind of contractual or commercial relationship, corporate or structural connection, or provision of financial or other support. This expressly includes use in advertising as well as use by affixing representations to goods, dealing in such goods or offering services under a controlled representation. 

There are a number of defences. In particular, a person does not infringe the Olympics association right by using a controlled representation in a context which is not likely to suggest an association between a person, product or service and the Olympic Games or the Olympic movement.  Using a representation in a way which has been continuous since before the 1995 Act came into force is also permitted, along with various journalistic uses.

Breach of the Olympics association right gives the BOA the right to seek injunctions, damages, an account of profits, delivery up and/or destruction of infringing of goods and materials, or orders for erasure, removal or obliteration of offending signs from infringing goods, materials or articles. There are also criminal offences, punishable by fines.

The London Olympic Games and Paralympic Games Act 2006 (2006 Act)

The 2006 Act amended the 1995 Act and introduced further restrictions. It created the "London Olympics association right", which is specific to the London Games.  This confers on people and organisations authorised by LOCOG exclusive rights in relation to the use of representations of any kind in a manner likely to suggest to the public that there is an association between the London Olympics and (a) goods and services; or (b) a person who provides them. 

The right is infringed by any use of such representations in the course of trade without a licence.  As under the 1995 Act, an association includes any kind of contractual or commercial relationship, corporate or structural connection, or provision of financial or other support. "Use" includes use in advertising. There is a list of expressions which are taken into account in assessing whether the association right has been infringed, such as "Games" "2012", "gold", "silver", "bronze", "London", "medals", "sponsor" and "summer". Use of such words in certain combinations may be indicative of infringement, but is only one factor to be considered.  Civil remedies for infringement are the same as those conferred by the 1995 Act.

It is clear from LOCOG's guidance that assessment of the London Olympics association right will depend on the individual factual circumstances, including context, overall impression, timing, words and imagery used, type of goods and past campaigns of the advertiser. 

Olympian Restrictions: Use of athletes

Rule 40 of the Olympic Charter (Rule 40) includes a ban on the use of current Olympic athletes (and trainers, officials and associated persons) in advertising during, and shortly before and after, the Games. There is a similar provision applicable to the Paralympic athletes.  Athletes who do not comply may be penalised by the IOC or BOA. 

The restrictions are subject to official arrangements by sponsors (which can obtain 'express consents' to use athletes in advertising), limited exceptions and other permissions that may be given by the approving bodies. For example there are some scenarios in which 'deemed consent' will apply for all advertisers (whether or not a London 2012 sponsor). These essentially relate to long-term use of athlete images on websites, in catalogues and on product packaging, provided the Games are not over-emphasised. LOCOG guidance on Rule 40 can be found here.

In addition, the International Olympic Committee (IOC) has produced a detailed social media and blogging policy for athletes.  During the Games period all endorsement for brands which are not official sponsors of the Games is banned (including Tweeting about a brand). Athletes are also prohibited from posting video clips from inside the athletes' village to blogs or social media sites such as YouTube and "must not report on competition or comment on the activities of other participants" via any media. 

Restrictions on Suppliers

Businesses supplying goods and services to LOCOG and other organisations involved in the delivery of the Games are not able to receive sponsorship benefits unless they become an official marketing partner of the Games. As a result the contracts that LOCOG hold with suppliers contain no marketing rights clauses which prevent suppliers from marketing their involvement in the Games and prohibit ambush marketing.

In addition, many Suppliers will have also been required to sign clauses which provide that they must supply goods or services without any commercial branding on them. These "clean venue" rules aim to prevent non-sponsor businesses or brands gaining exposure at Games venues or via other public activities undertaken by LOCOG.

However, suppliers are legitimately able to make some simple factual statements about the work they undertake in relation to the Games – for example in client lists and pitch documents. Other activities may be agreed with the consent of LOCOG. LOCOG guidelines for suppliers can be found here.

Conferences and Events

LOCOG have put together specific guidance for people within the United Kingdom wishing to host conference and seminars about the Games. This guidance applies both to non-commercial organisations which have a responsibility to disseminate information, and to organisations whose core business is the provision of information/education. It is not intended for professional service providers, which are thinking of putting on an event about the Games as part of their sales and marketing activities.

Essentially, an event must not be presented as an 'Olympic' or 'London 2012' event, or be marketed in a way which suggests it is an official event; sponsorship of the event  must not be offered in a way which suggests an association with London 2012, or the Olympic or Paralympic Movements more generally; and the event should not use branding or copyright images relating to the Games. Materials produced for, or about, an event which is focused on the Games should also carry a disclaimer making it clear that the event is not organised or endorsed by LOCOG.

Tourist Industry

There are also guidelines on how tourism products and services related to London 2012 can be described and communicated, with appropriate inclusion of information and references to the Games which are necessary and helpful to visitors, without infringing the exclusive sponsorship rights of official Games sponsors.

The key message is that the inclusion of such information must always be ancillary to the product offered and not be so prominent as to convey the impression that the product is related to the Games. Specific examples of what is and what is not acceptable are given. The guidance relates specifically to activities taking place in the UK and from UK-focused websites only. Local laws will apply to any activity in other jurisdictions

The Department for Culture, Media and Sport and LOCOG recently collaborated to publish guidance for the betting industry setting out key 'do's and don'ts', including examples, relating to activity around the London Olympic and Paralympic Games 2012.

The key principles, which are relevant to all forms of promotion, marketing, customer information and advertising, in all forms of media, and apply to all Games sporting and non-sporting events and activities, are that operators must not use any of the Protected Games Marks and must not suggest or imply any association with the Games. However, operators can make informative and proportionate statements of fact containing basic information that is necessary to enable customers to place bets on the Games.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 20/04/2012.