Ambush marketing is an area that is of concern to all organisers of sporting events and is as there is no specific legal protection to combat against it under UK Law often event organisers struggle to fully protect the exclusivity of their event.
The London Olympic Games and Paralympic Games Act 2006
The London Olympic Games and Paralympic Games Act was passed on 30 March 2006 swiftly after the announcement that London was to host the games showing the need that the London 2012 Organising Committee for the Olympic Games (LOCOG) had to protect their newly awarded event.
What was the position prior to the Act being passed?
Prior to the act being passed there was The Olympic Symbol (Protection) Act 1995 which created an “Olympic Association Right” which was a quasi-trademark right which protected the 5-ring Olympic symbol, the Olympic motto and protected words such as Olympics and Olympiad.
There was, however, no specific protection to prevent ambush marketing with the usual legal doctrines having to be extended to try and afford protection.
What does the new law say?
The London Olympic Association Right
Schedule 4 of the London Olympic Games and Paralympic Games Act introduces the London Olympics Association Right (LOAR) which provides LOCOG with the exclusive right to authorise persons to use and exploit any visual or verbal representation (of any kind) which is likely to create, in the public mind, an association between the London Olympics and goods or services, or a person who provides goods or services.
Furthermore the Act sets out a variety of words such as “games”, “2012”, “Two Thousand and Twelve” and “twenty twelve” which must not be used in combination with any of the following words, “gold”, “silver”, “bronze”, “London”, “medals”, “sponsor” or “summer” in an unauthorised manner which will be likely to suggest to members of the public that there is an association with the London Olympics.
Official Sponsors and commercial partners can therefore be granted exclusive rights by LOCOG under the Act to associate themselves with the games.
Following on from this provision it is therefore conceivable that many ambush marketing acts previously unable to be stopped will be caught by the act so long as certain members of the public feel that there is a direct association with the Olympic games. It will, however, be up to the courts to decide whether this is the case on an individual case by case basis.
When the Bill was first passed there was a proposal for a presumption of infringement when the prescribed words were used in combination as stated above. Also the burden of proof was on the person who used the words to show that no association with the London Olympics would be likely to be created in the mind of the general public. Now the act has been passed without an automatic presumption that there is an infringement when the words are used in that combination and now the use of the words will be assessed by the court as to whether any infringement has indeed taken place.
This does not mean that the courts are likely to find in favour of the individual using the words as they will still frown heavily upon any commercial entity which is attempting to take advantage of the publicity and commercial opportunities surrounding the games for its own commercial gain.
Is the list of protected words and expressions complete?
This list of protected words and expressions is not complete and can be amended by the Government. The Government must, however, consult with the advertising industry prior to adding, removing or varying the list of protective words and expressions.
What is the case in relation to Journalists using the protected words?
The London Olympic Games and Paralympic Games Act includes a defence when the designated phrases or words are used in publishing and or broadcasting a report of a sporting event which forms or is part of the provision of information about the games. Consequently if a particular broadcast, by the BBC for example, is advertised then the designated phrases may also be used in this kind of advertisement.
The Touting of Tickets
There are specific laws in the UK set down by statute which are put in place to combat ticket touting and the black market sale of tickets which would not have been sufficient to deal with the black market for Olympic Games tickets. The London Olympic Games and Paralympic Games Act therefore creates a direct prohibition on the unauthorised sale of Olympic Tickets in a public place by an unauthorised person in the course of business.
What is meant by the term Sale?
The Act introduces a wide definition of sale which includes offering to sell a ticket, exposing a ticket for sale, advertising the availability of a ticket for purchase and offering to provide a person with a ticket in exchange for goods or services. Therefore all of the acts associated with the touting of tickets will be caught when concerned with Olympic Games tickets.
Advertising, Street Trading and Transport
The Secretary of State is provided with the power to enact regulations controlling advertising and street trading in the vicinity of the Olympic venues and also to enact an Olympic Transport Plan which will ensure that LOCOG can fulfil all its obligations as a host city.
Before enacted this legislation, however, the Government must consult with the advertising industry prior to putting in place restrictions concerning the physical location of advertising around Olympic venues.
In practice these restrictions will seek to prevent much of the ambush marketing seen previously at Olympic Games – most notably Los Angeles in 1984.