July 27, 2012

Ambush Marketing and the London Olympic Games

Seller Beware: Consumer Protection Insights for Industry

With the 2012 Olympics just about to start (27 July 2012) and the eyes of the world on London, now is a good opportunity to discuss how ambush marketing is treated in the UK.

"Ambush marketing" is the term given when third parties attempt to piggyback off a major event by suggesting that they are directly or indirectly associated with it, in order to benefit from the goodwill, prestige or popularity of the event, without having to pay a licence or sponsorship fees for the privilege. It can have huge benefits for companies that did not secure official sponsorship, either because they considered the fees too high or, as with the Olympics, there is only room for one official sponsor per market segment (e.g. sport, food, telecoms etc.). These ambush campaigns often attract the attention of consumers with very little cost to the ambushing brand owner compared to the cost of paying to be official sponsor.

There have been a number of high-profile and successful ambush marketing campaigns linked to the Olympics in the past. At the 1996 Atlanta Games, Nike plastered the city in billboards, handed out Nike flags for fans to wave at cameras and set up its own "Nike Village" next to the official sponsors' village. 22% of television audiences cited Nike as the official sponsor, compared to only 16% who cited Reebok, which was, in fact, the official sponsor. As a result of these tactics, the International Olympic Committee (IOC) now takes a hard line on ambush marketing.

So how is ambush marketing treated at the London 2012 Games? There is no specific legislation dealing with ambush marketing in the UK generally, although there three pieces of UK legislation concerning the Olympics, Paralympics and the London 2012 Games. In the absence of such specific legislation, ordinary intellectual property rights (such as registered trade marks, copyright, passing off etc.) or contractual rights may assist brand owners.

The Olympic Symbol etc. (Protection) Act 1995 and the London Olympic Games and Paralympic Games Act 2006 are designed to prevent "unauthorised commercial association" with the Olympics and the London Games. The upshot of these is that there are restrictions over use of certain words or logos associated with the Games without authorisation, such as the main Olympic symbol (the five circle emblem), the motto "Citius, Altius, Fortius" or the words "Olympic(s)", "Olympian(s)" and "Olympiad(s)" etc.

The London Olympic Games and Paralympic Games Act 2006 specifically prevents the use of any representation, verbal or non-verbal, which suggests a link/association with the London Games. The Act sets out a number of non-exhaustive expressions which the UK courts may take into account as being suggestive of an "association", such as "Games", "Two Thousand and Twelve", "2012", "Gold", "Silver", "Medals", "London", "Summer" etc. The result is that even innocuous marketing campaigns, such as "Watch the 2012 Games here this summer" or "Get fit in time for the 2012 Games this summer" run the risk of falling foul of the legislation. Businesses, marketers and advertisers are largely prevented therefore from using representations which may cause the public to associate them with the Olympics, Paralympics or the London Games, unless they are an official sponsor or have the sanction of the London Organising Committee of the Olympic Games (LOCOG).

A further piece of legislation, the London Olympic Games and Paralympic Games (Advertising and Trading) (England) Regulations 2011 controls certain types of advertising activity and street trading in the vicinity of London 2012 events. This gives the police immediate powers to stop unauthorised advertising and trading in these areas.

Whether these legislative attempts to quash ambush marketing achieve the right balance between the rights of official Olympic sponsors and those of other companies is sometimes questionable; in the months leading up to the London Olympics, LOCOG have been very active in enforcing these specific pieces of protective legislation against everyone, from large businesses and small family-run enterprises. In the coming days, it is clear is that advertisers, brand owners, advertising agencies and PR companies must take extra care if they wish to run a marketing campaign or even, that is in any way looks to tie it to the Olympics or the London Game - the world and LOCOG are watching.

© Arnold & Porter Kaye Scholer LLP 2012 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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