UK: Ambush Marketing - Friend Or Foe?

Last Updated: 27 June 2012
Article by David Gourlay and Euan F. Duncan

The London Olympic Games organiser (LOCOG) is tasked with preventing non-sponsors from using the event as a marketing opportunity at the expense of official Olympic brands and is prepared to battle ambush marketers head on.

"Ambush marketing" is a term which describes any unauthorised activity which attempts to associate a product, service or business without paying for the privilege. This can be done by running event related promotions, for example, giving away products which will hopefully be featured in press or television coverage; using advertising space in proximity to event grounds or official broadcast spots; and sponsoring individual teams and athletes rather than the event itself.

"Ambush police", which LOCOG has confirmed are likely to be seconded from Trading Standards for the duration of the Games, are to be engaged and exclusive marketing zones will be established within a set distance of venues. In addition, giveaways and aerial advertising will be regulated, all to protect sponsors' investments.

With sponsorship deals for the event having raised around £670m for LOCOG, LOCOG needs to protect its official sponsors. Brand owners would not pay such large sums of money if exclusivity is not guaranteed and this puts enormous pressure upon LOCOG to ensure that this guarantee is upheld.

This issue was recently highlighted by digital agency Jam, which found that non-Olympic sponsor Nike is the brand most associated with the 2012 Games and is far outperforming official sponsor Adidas in terms of recognition. The research looked at mentions within social media, and discovered that Nike is dominating online chatter with 7.7% of conversations about the Olympics associated with the brand. Despite spending a reported £100m to secure the official rights, Adidas is involved in only 0.49% of conversations.

Nike's ad campaign launched at the turn of the year - which featured Olympic athletes Paula Radcliffe and Mo Farah with the Twitter tag #makeitcount hints at an association with Olympic sports, but crucially not the Games themselves, so the campaign does not actually break any rules.

With official partners such as Coca Cola, Visa and McDonald's paying millions to have their names associated with this global event, the right to use the Olympics logo and otherwise link their brands to the sporting extravaganza, it is thought that the 2012 Olympics will see some of the strictest anti-ambushing rules ever enforced. With social media more prevalent than ever LOCOG is paying special attention to digital platforms which could be used by brands to springboard themselves into the sporting worldwide stage.

Although the specifics are not yet known, Twitter is apparently "working with LOCOG to ensure that the same rules that apply everywhere else will apply to Twitter." Non-sponsors will not be allowed to buy promoted Twitter ads using games-related tags such as #London2012.

In a forward thinking investment, last year, LOCOG entered into an agreement with location-based social networking website Four Square to stop any brands from creating a "check-in" location around Olympic venues on their network.

Such efforts, combined with an event wide ban on volunteers having the ability to tweet, post on Facebook or blog any back stage areas or behind the scenes footage, show LOCOG is making a substantial effort to ensure their sponsors are protected.

The Olympics rings symbol, flame symbol, motto "Citius Altius Fortius" (or "Faster, Higher, Stronger") and words such as "Olympics", "Olympian" and "Paralympics" all have special protection. There is no requirement for these symbols or mottos to be registered as trade marks as legislation prohibits use of them or any symbol, motto or wording which is similar and creates an unauthorised association with the Olympic symbols, mottos and words.

Separately, however, the actions deemed necessary by LOCOG in relation to the Olympics 2012 have been considerably strengthened with LOCOG seeking to rely on additional parliamentary protection over and above UK trade mark and copyright legislation. The London Olympic Games and Paralympic Games Act 2006 introduced a new "London Olympics Association Right" being a new intellectual property right which prohibits an unlicensed person from making any representation likely to create an association with the games (not just the symbols and mottos). Courts may take the use of words such as "games", "London", "twenty twelve", "gold", "silver" "bronze" and even "summer" as evidence of such a representation.

It is therefore extremely important for non sponsors considering using the 2012 Games as a commercial platform for its brand to seek the appropriate legal advice in relation to what is considered the most complex and restrictive advertising regulations to accompany the Olympics to date.

The organisers of the Glasgow 2014 Commonwealth Games will no doubt be watching to see how the key issues of ambush marketing and sponsorship exclusivity is dealt with at the Olympics. It will undoubtedly provide a useful insight into the measures required to uphold the commercial integrity of high profile sponsorship deals required to stage an affordable and commercially successful Olympiad.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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