UK: Ambush Marketing In The Run Up To Rio 2016

Last Updated: 8 June 2016
Article by Timothy Pinto and Andi Terziu

The organisers of the Olympic and Paralympic games try to ensure, by means of intellectual property and other laws, that the huge investment of the official sponsors is protected from ambush marketing. Non-sponsors would, of course, also like to associate themselves and their products with such high profile sporting events if they can, but they have to tread very carefully through a thicket of laws.

About a month before the London 2012 Olympic Games, the online betting company Paddy Power advertised that it was the "OFFICIAL SPONSOR OF THE LARGEST ATHLETICS EVENT IN LONDON THIS YEAR". Paddy Power, however, did not sponsor the Olympic Games. Instead, the advert added "(AHEM, LONDON, FRANCE THAT IS)". It had created and sponsored an athletics event in a town named London in France. This "ambush marketing" advert was, of course, a humorous attempt by Paddy Power to associate itself with the London 2012 Olympics without paying for the privilege. After initially ordering that the advert be blocked for being in breach of the London Olympics Association Right, the London 2012 organiser, LOCOG, performed a U-turn on its position and let the advert remain when Paddy Power decided to challenge the block in court.

Sponsorship is an essential aspect of major sporting events such as the Olympic and Paralympic Games. It is the perfect marketing opportunity for major companies to associate themselves with a sporting event watched by millions, or sometimes even billions, around the world. At the same time, the sponsorship revenue is often essential to the organisers of the sporting events – for example, according to the International Olympic Committee (IOC) website, over 40% of the Olympic revenue is generated from worldwide sponsorships. However, whilst some companies are prepared to pay a premium for a close and official association with a major sporting event, others (like Paddy Power in the example above) attempt to find other ways to directly or indirectly associate themselves. It is no surprise that the event's organisers want to prevent ambush marketing, given the importance of sponsorship revenue.

Ambush marketing generally involves the attempted exposure of a non-sponsor's brand in areas reserved for official sponsors, or any other attempt to gain an association with the sporting event. Intellectual property law can only go so far in helping to prevent ambush-marketing. Therefore, the organisers of major sporting events, such as the IOC, apply other measures to try to curb ambush marketing.

The Olympics/Paralympics is the sporting event with the most anti-ambush marketing protection and provides a 'gold standard' which other sporting events organisers try to emulate but rarely surpass.

The Olympic symbols

Some of the Olympic symbols are over 100 years old. The rings were conceived in 1913 by Baron Pierre de Coubertin, who was responsible for the rebirth of the Olympics in the modern era. The main Olympic and Paralympic symbols are the property of the IOC. Most jurisdictions have enacted legislation to protect these signs. For example in the UK, The Olympic Symbol etc. (Protection) Act 1995, confers exclusive rights to the IOC to use the Olympic symbol (i.e. the five rings logo), the Olympic motto ("Citius, altius, fortius"), the Paralympic motto ('Spirit in motion') and the protected words (which include: Olympiad(s), Olympian(s), Olympic(s), Paralympiad(s), Paralympian(s), and Paralympic(s)) (together the 'Prohibited Olympic Signs'). It is an infringement if an unauthorised person uses the Prohibited Olympic Signs or confusingly similar signs in the course of trade.

Rio 2016 symbols

Brazil has enacted The Olympic Act (Law 12,035/09 of October 1, 2009) which protects symbols and expressions specific to the Rio Olympics, including the names 'Rio 2016 Olympic Games', 'Rio 2016 Paralympic Games', 'XXXI Olympic Games', 'Rio 2016', 'Rio Olympics', 'Rio 2016 Olympics', 'Rio Paralympics', 'Rio 2016 Paralympics', other abbreviations and variations of the same phrases, as well as the emblems, flags, anthems, mottos, and mascots, of the Rio 2016 Olympic Games, and Rio 2016 Paralympic Games. Any unauthorised use of these signs is prohibited. The Act also prevents use of any signs sufficiently similar to the prohibited signs, if use of such a sufficiently similar sign would lead to any company obtaining an undue association with the Rio 2016 Olympics or Paralympics.

Though the Brazilian legislation is not likely to have any effect on marketing campaigns in the UK, if a company carries out online ambush marketing accessible in Brazil, this could potentially be brought within the remit of Brazilian law.

Trade marks

The IOC is the proprietor of many registered trade marks, including for the words 'OLYMPIC', 'THE OLYMPICS', 'OLYMPIAN', 'CULTURAL OLYMPIAD', 'OLYMPIC MOVES', as well as the Olympic rings logo. In addition, the Rio 2016 logo and 'RIO 2016', are also registered as trade marks.

Other intellectual property protection

Under English law, the tort of passing off prevents any misrepresentation (e.g. that there is an endorsement or connection) between goods and services of one person and those of another, if that misrepresentation is likely to cause damage to the goodwill of the misrepresented party.

The official Rio 2016 fonts, the logo and any other graphical works, as well as films, presentations, images, music, artwork and visual elements created by Rio 2016 and other official Olympic or Paralympic bodies, may be protected by copyright. Any use of these could constitute an infringement.

Unfair commercial practices

The Consumer Protection from Unfair Trading Regulations 2008 (Regulations) prohibit any commercial practice that, for example, contains false material information or deceives or is likely to deceive the average consumer, and as a result "causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise". Material information includes 'any statement or symbol relating to direct or indirect sponsorship or approval of the trader or the product'. In addition, falsely claiming that a trader or a product has been "approved, endorsed or authorised by a public or private body" is deemed to be an unfair commercial practice. An advertisement which deceives consumers into thinking that the product or service is associated with the Olympic Games may, therefore, breach the Regulations. Such a breach can constitute a criminal offence that carries a penalty of a fine and/or imprisonment up to 2 years.

Additional measures

The IOC applies stringent rules to which all the participating athletes are bound. The rules, among other things, prevent athletes from taking part in advertising during the games and fifteen days before and after. The ICO also establishes a 'clear zone' around the Olympic Village and will diligently police these areas to prevent non-sponsor brands from becoming prominently visible during the Games.

To provide guidance on what constitutes lawful marketing, the Rio 2016 Organising Committee has published Brand Protection Guidelines.

Other sporting events

Of course, other major event organisers will have their own registered and unregistered intellectual property rights and impose contractual and ticketing restrictions. However, it is the statutory protections imposed by the IOC and extensive brand protection campaigns which give the Olympic and Paralympic Games an edge in helping to prevent ambush marketing across the world.

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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