BRIEFING PAPER - AUGUST 2005
Olympics Bill
ISBA is assessing the potential impact on advertisers of the ‘Olympics Bill’ which is due to become law in coming months, following the announcement that London will host the 2012 Games. The Bill is intended to prepare widely for hosting the Games.
Amongst other provisions, the Bill sets out powers to ‘protect’ the Games from unauthorised commercial exploitation and ‘ambush marketing’ (marketing activity by someone who is not an official sponsor, which seeks to take advantage of the goodwill associated with an event). Specifically, the Bill will update and widen existing Olympic symbol protection legislation in line with IOC requirements and allow regulations to be made to restrict unauthorised advertising and trading around Olympic venues.
This paper, which was produced with the support of analysis from specialist advertising and marketing lawyers at Osborne Clarke (see http://www.marketinglaw.co.uk) sets out the key issues.
The Olympics Bill and ambush marketing
In the UK, some level of ambush marketing has to date been legally permissible, provided the activity
does not infringe trade marks or copyright, breach contractual rights or create the false impression that the brand in question is an official sponsor or otherwise officially connected with the event. However, there is a growing trend for host governments of major sporting events to introduce specific anti-ambush laws that go beyond the traditional legal protections. The first published version of the Olympics Bill suggests the UK Government plans to follow that route.
General ban on Olympic allusions
The Bill will create a "London Olympics association right" (Schedule 3, paragraph 1). This will effectively be a new, specific form of intellectual property right, enforceable by the London Organising Committee that would:
"confer exclusive rights [on the London Organising Committee and its licensees] in relation to the use of any visual or verbal representation (of any kind) in a manner likely to create in the public mind an association between the London Olympics and (a) goods or services; or (b) a person who provides goods or services"
Subject to certain exceptions, use of any visual or verbal representation in the course of trade would be an infringement of the London Olympics association right and would be unlawful under the Bill (Schedule 3, paragraph 2).
Exceptions
The London Olympics association right would not be infringed by use of a registered trademark in relation to goods or services for which it is registered (paragraph 6).
Use by a person of their own name or address would also not be an infringement provided the use is "in accordance with honest practices in industrial or commercial matters"(paragraph 7). Subject to that same proviso, representations which are "necessary to indicate the intended purpose of a product or service" or of indications concerning the kind, quality, quantity, intended purpose...or other characteristics of goods or services" would also be permitted.
Ban on specific 2-word combinations
Combining the word "games" or "2012" (whether in numerical or fully written form) with any of the following words would be a problem: "gold", "silver", "bronze", "London", "medals", "sponsor" and "summer". The combination of "2012" and "games" is also presumed to be an infringement.
Trademark protections
Separately, the IOC has taken the unusual step of applying to register "2012" as a community trade mark in relation to an extremely wide specification of goods and services. See:
http://webdb1.patent.gov.uk/RightSite/formexec?DMW_DOCBASE=ibis&DMW_INPUTFORM=ibis/ohim.htm&ohimnum=E4482147
Advertising in the "vicinity" of venues
The Olympics Bill additionally gives the Secretary of State wide new powers to control poster advertising, field marketing and other marketing activities in the "vicinity" of the London Games (sections 17-22).
Under these powers, poster advertising by non-sponsors could potentially be banned. However, there is little indication at this stage as to the nature of the controls that will be imposed.
Freedom of speech
UK advertisers have always been free to make reference in their communications to topical news events and current issues. They have just had to be careful not to infringe trademark rights or copyright, and to ensure that the reference does not amount to "passing off" by falsely suggesting some kind of commercial linkage between the advertiser and the event. If taken to the letter, the provisions of the Olympics Bill would remove this freedom.
Reduced media and advertising spend
The ban on references and allusions to the Olympics could have a significant adverse impact on
advertising revenues. The usual "Olympics factor" in uplifting media spend could be severely dented, with brands finding it too risky to run advertising with sporting imagery, themes or allusions.
ISBA action/ going forward
The provisions of the Bill give a great deal of power to the London Olympic Association. However whilst the powers set out in the Bill appear sweeping, they are also general: the actual level of impact will depend on specific regulations developed in coming years from the authority the Bill provides.
ISBA believes it unlikely that the Government will be able to accept many concessions on the face of the Bill as it is likely that that the IOC stipulated much of this during the bidding process for the host city. That said, there remains much to be decided and clarified through a process of dialogue once the Bill becomes law and the statutory body is up and running.
Working with others, ISBA will input into lobbying activity on the Bill through briefings with Lords and with the Committee which will discuss the Bill.
Further efforts will concentrate on lobbying the relevant bodies once the Bill becomes law and the statutory body is set up to ensure regulations aim to protect legitimate sponsors from ambushing, whilst at the same time ensuring reasonable freedoms for advertisers before and during the games.