Ambush marketing or guerrilla marketing is a term used to describe a brand which connects itself to a particular event without paying any sponsorship fees to be an official sponsor.
An official sponsor of an event, such as the Olympic Games, will pay a considerable sum of money by way of sponsorship fees. The success of these events depends upon the huge sums raised from sponsorship, ticketing and official merchandising. These payments fund the event. So when an official sponsor's competitor "ambush markets" the event, the value of being an official sponsor is considerably diminished. The result of an event being ambush marketed is that official sponsors are reluctant to enter into future sponsorship deals. The knock on effect is that future events fail to obtain the revenues generated by way of sponsorship. The result is that the reputation and prestige of something such as the Olympic brand can be irredeemably damaged.
The cost of being an official sponsor of the Olympic Games is alleged to be in the region of 80 million pounds; so brand owners are keen to employ cunning marketing tactics to associate their brand with the Olympic Games but avoid paying the sponsorship fees. This tactic was seen at the Beijing Olympic Games where ambush marketing was at its most prevalent. As a result, the London 2012 Organising Committee for the Olympic Games (LOCOG) is keen to take steps to control ambush marketing.
How are the exclusive rights of official sponsors to be preserved?
The Olympic brand is made up of various elements including official names, phrases, trade marks, logos and designs related to the 2012 Games and the Olympic and Paralympic movements.
Protection of Intellectual Property
Certain elements of the Olympic brand and its intellectual property are protected against ambush marketers under UK law by registered trade marks, passing off, copyright and designs. For example, there are a number of Olympic related UK and Community registered trade marks including: the word marks "2012", "The Olympics", "Olympian", "2012 London" and images such as the Olympic Symbol (five interlocking rings symbol).
The registration of the Olympic marks means that any brand owners who use identical or similar marks in the course of trade may be guilty of trade mark infringement. As a result, they may well find themselves the subject of an interim injunction restraining use of the mark and subsequent trade mark infringement proceedings.
Additional Protection
The London Olympic Games and Paralympic Games Act 2006 (the "2006 Act") amends the already in existence Olympic Symbol (Protection Act) 1995 (the "OSPA"). Together they legislate to provide further protection for intellectual property rights relating to the London 2012 Olympic and Paralympic brands.
For example, the OSPA creates an "Olympics association right" which confers exclusive rights in relation to the use of the Olympic Symbol, Olympic Moto ("Citius, altius, fortius") and certain "protected words", being "Olympiad", "Olympiads", "Olympian", "Olympians", "Olympic" and "Olympics". A person infringes the Olympics association right if in the course of trade he uses (a) a representation of the Olympic symbol, the Olympic motto or a protected word, or a representation of something so similar to Olympic symbol or the Olympic motto as likely to create in the public mind an association with it, or a word so similar to a protected word as to be likely to create in the public mind as association with the Olympic games or Olympic movement.
The 2006 Act provides further protection by creating a right, to be known as the "London Olympics association right". The concept of association includes any kind of contractual or commercial relationship or corporate or structural connection, and the provisions of financial or other support. The London Olympics association right is infringed if a person uses a word or logo (of any kind) in any manner likely to suggest there is an association between goods or services or a person providing goods or services, and the London Olympics. The Act sets out when a court may take into account the use of a combination of certain expressions including "games", "2012" and "twenty twelve", "gold", "silver", "bronze", "summer" and "medals".
The unauthorised use of any of the elements of the Olympic brand or any other marks or logos that are confusing similar to or, likely to be mistaken for, them is not allowed. The 2006 Act also makes it unlawful to falsely represent any association, affiliation, endorsement, sponsorship or similar relationship with London 2012, the British Olympic teams or any other part of the Olympic movement, whether through us of the Olympic brands or otherwise.
The protection afforded to official sponsors of the London Olympics does appear to be far reaching. Certainly, brand owners intent on ambush marketing the London Olympics need to take care not to fall foul of the new legislation. However, ambush marketing by its very nature is often creative, innovative and difficult to police and we are sure to see some very cunning non-official marketing campaigns surrounding the London Olympics!
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.
