Shortly after Rio de Janeiro was selected to host the 2016 Olympic and Paralympic Games, the Brazilian Congress passed legislation aimed at protecting Olympic intellectual property and preventing ambush marketing during this summer's events. With the games now open (the Opening Ceremony is this weekend) it is important to consider the legal risks of linking a brand to the games.
What is ambush marketing?
Businesses can market their brand, goods and services in association with the games by becoming an official sponsor whereby they pay a sponsorship fee to use Olympic intellectual property (IP). It is a similar arrangement to a typical licence agreement e.g. the licensee (the sponsor) pays a licence fee (the sponsorship) to use the licensor's (the International Olympic Committee's (IOC)) intellectual property (the Olympic IP) and be assisted by the licensor (IOC).
Ambush marketing is often accused of being a marketing strategy whereby businesses seek to associate themselves and their product or services, and thereby benefit from, major events without paying the fees required to be "official". There have been various examples of ambush marketing over the life of the Olympic Games and London 2012 was no exception. The Irish bookmaker, Paddy Power, was accused of ambush marketing during London 2012 regarding the use of billboards that stated:
"Official sponsor of the largest athletics event in London this year!
There you go, we said it.
(Ahem, London France that is)"
The London Organising Committee of the Olympic Games sought a takedown of the campaign. Paddy Power claimed their billboards referenced sponsorship of an egg and spoon race to be held in the town of London in France and the campaign continued.
Another example was the alleged discounts offered by a wine merchant to customers wearing Nike trainers who had: Vauxhall car keys, a MasterCard, an Apple iPhone, a British Gas bill and a can of Pepsi with them – these named brands were all official sponsors of the London games.
The technical bit (...the law)
On the 1 October 2009, (shortly after it was announced that Rio would host the 2016 Games) the Brazilian Congress passed The Olympic Act (the Act) which stipulates various rules for the Rio games with specific provisions intended to curtail ambush marketing.
Under Article 6 of the Act, Brazilian federal authorities are responsible for monitoring, investigating and suppressing any unlawful acts which violate the rights of the trade marks used in connection with the 2016 Rio games. The Act provides (rather broadly) that the trade marks related to the 2016 games include:
- All graphically distinctive signs, flags, mottos, emblems and anthems used by the IOC.
- The names "Olympic Games," "Paralympic Games," "Rio 2016 Olympic Games," "Rio 2016 Paralympic Games," "XXXI Olympic Games," "Rio 2016," "Rio Olympics," "Rio 2016 Olympics," "Rio Paralympics," "Rio 2016 Paralympics" and other abbreviations and variations, and also those equally relevant that may be created for the same purposes, in any language, including those in connection with websites.
- The name, emblem, flag, anthem, motto and trade marks and other symbols of the Rio 2016 Organizing Committee.
- The mascots, trade marks, torches and other symbols in connection with the XXXI Olympic Games, Rio 2016 Olympic Games and Rio 2016 Paralympic Games.
Article 8 extends the reach of this protection to cover the use of terms and expressions that are "sufficiently similar to the [protected marks] to the extent that they are able to invoke an undue association of any products and services whatsoever, or event any company, transaction or event, with the Rio 2016 Games or Olympic Movement." The Act also clearly states that an unlawful act may include use of the above marks even if the use is not for a commercial purpose so third sector organsiations must be also be mindful of these laws.
Like all IP, the Olympic IP will be regulated by the usual IP laws as well as the Rio specific Act for example, the unauthorised use of IOC trade marks.
Why does the IOC want to prevent ambush marketing?
The short answer is money. The games cost billions to organise and official sponsors pay huge sums of money to gain their official status (between $10 million and $100 million). Protection of Olympic IP helps the IOC to finance the games – there would be no incentive for businesses to pay sponsorship fees if they could receive the same marketing benefit from the games without splashing out sponsorship funds.
What should businesses take from this?
Non-official sponsors must be wary about creating direct links with major events, and ensure that their marketing campaigns are legally compliant. The Olympic IP is varied and includes (among other things) logos, symbols, images, videos, official expressions, anthems and songs. The combination of (1) a varied collection of Olympic IP; and (2) the Article 8 extension to include mere association, means that infringement by non-sponsors could be easily incurred. If you are unsure whether your organisations' campaign is treading too close to the line then it is best to seek legal advice. Additionally, the IOC's 2016 Brand Protection Guidelines: Advertising Market and Advertisers is a useful guide which clearly sets out the 'dos and don'ts' of advertising and marketing regarding the games.
Official sponsors who wish to protect their IP rights and reduce ambush marketing, should seek legal assistance as soon as they become aware of any ambush marketing practices.
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.