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The official start of the biggest sporting event in the world is
fast approaching. As the build-up gathers pace businesses are
already beginning to feel the force of what is widely regarded as
one of the most restrictive advertising regimes ever imposed.
Many retailers will already be wary of the legislation
introduced to prevent the ever resourceful ambush marketeers
(Nicklas Bendtner's underpants at Euro 2012 sporting the name
of an Irish betting firm being the most recent example) however the
actual scope of the legislation goes far wider and presents many a
trap for unwary retailers across Britain.
Most will have some sympathy with the commercial reasons behind
the one kilometre "brand-exclusion" zones imposed around
Olympic venues to prevent the traditional ambush marketing (most
famously utilised by Nike who purchased a building next to the
Olympic village in Atlanta 1996 which it then overtly branded the
Nike centre). Further, most businesses will appreciate the need to
protect established trademarks such as the "Olympics" and
"Paralympics" names themselves, the symbol of the Olympic
rings and the official logos used in promoting London 2012.
It is the wider "association" right created by the
London Olympic Games and Paralympic Games Act 2006, which is likely
to be of greater concern. The legislation was drafted widely to
discourage the resourceful ambush marketing teams from finding
loopholes. The corollary of this is that no definite rules exist as
to what may or may not constitute an infringement.
The ethos of the legislation is that any advert which implies
some association with the Olympics or London 2012 is likely to
infringe. Any organisation that uses any of the following words
(particularly two or more in combination) as part of its
advertising is in danger of making such an "unlawful
association": 'Games', 'Two Thousand and
Twelve', '2012', 'Twenty-Twelve',
'Gold', 'Silver', 'Bronze',
'London', 'Summer' and 'Medals'. It is also
possible to create an "unlawful association" without
using any of those words.
The penalties and enforcement measures are also particularly
onerous with fines and compensation orders available as well as
police officers and officials having the right to enter premises to
remove and destroy advertising materials (although the latter is
likely only to be used near Olympic venues).
However retailers should be wary that it is not just TV or
billboard advertising which is caught by the Act. It extends to
posters in windows or even blackboards outside pubs and
restaurants. A café in London has already been forced to
change its name to the "Lympic Café" and a florist
in Stoke on Trent to remove its display which incorporated a
version of the Olympic rings. These are merely early instances of
more blatant infringements (even though undoubtedly done in an
entirely innocent manner).
There are a number of defences available but the one which is
likely to be most commonly argued is use of statements of fact
providing that such statements are made in accordance with honest
commercial practices and not made gratuitously for purely marketing
purposes. It is clear however that the Organising Committee read
such a provision extremely narrowly. Businesses and retailers,
particularly those close to Olympic venues, should be particularly
wary of any advertising which associates itself with London 2012 as
it is likely that there will be many other stories of businesses
unexpectedly falling foul of the rules before London 2012 draws to
a conclusion.
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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