As the 2012 London Olympic and Paralympic Games draw nearer the debate over the impact of the Games, both positive and negative is growing. The end of April saw the handing down of the first 'Olympic ASBO' following a protest about the construction work taking place on the environmentally protected Hackney Marshes.
Whilst the specific details of the protest are undisclosed, it has been reported that the ASBO (Anti-Social Behaviour Order) prevents the recipient from entering within 100 yards of any Olympic competition, practice venue or road being used for Olympic activities. It further prevents the recipient from trespassing over any land or building, or from taking part in anything which is designed to interfere with the planned Olympic or Diamond Jubilee activities. It also prevents the individual from obstructing the passage of any Olympic participants at any time. Any breach will have criminal consequences.
The breadth of these restrictions has stoked the debate on the overall impact of the Olympics and has seen wider issues of individual freedom considered. The Olympic charter proclaims that the right to sport is a human right. The issuance of this ASBO highlights the delicate balance to be struck between this proclamation, the well established rights of the European Convention on Human Rights and the expanding scope of the "public interest" and "national security" in emergency-style legislation.
Brand Protection - The London Olympic and Paralympic Games Act 2006
The London Olympic and Paralympic Games Act 2006 prohibits "the use of any representation (of any kind) in a manner likely to suggest to the public that there is an association between the London Olympics and (a) goods or services; or (b) a person who provides goods or services."
An "association" can be created by using any form of representation (i.e. word, image, graphic design, sound) and so this restriction will apply in respect of all types of advertising and sales activity. The 2006 Act contains a number of "Listed Expressions" which, if used in combination, are more likely to create an "association" (although use of such terms is not definitive). Terms such as Games and 2012 cannot be combined with London, summer, bronze, silver or gold in adverts or on goods; and certain images cannot be used, such as an Olympic-style flame.
The meaning of "association" is potentially very broad and so care should be taken whenever advertising activity involves a potential link to the 2012 Games. It would catch, for example, hotels offering discounts on rooms to people attending the games, or any pub or bar that gets in screens to show the Games and publicises it on signs outside the venue.
The 2006 Act is in addition to the pre-existing Olympic Symbol etc. (Protection) Act 1995 which in essence prevents the unauthorised use of the Olympic and Paralympic brands as well as specifically prohibiting the use of certain terms and symbols. These include the words Olympic, Olympiad and Olympian as well as the Olympic rings symbol.
Use of these terms and symbols or anything 'confusingly similar' will likely be a breach. Any breach can lead to a civil action for either an injunction or damages. The London Organising Committee of the Olympic and Paralympic Games ("LOCOG") has also made it clear that it will be seeking to ensure that the rules are adhered to both in physical practice and also in virtual media including Twitter and YouTube.
Ambush Avoidance - The London Olympic Games and Paralympic Games (Advertising and Trading) (England) Regulations 2011
There are even tighter restrictions in the specified 'Event Zones' which surround venues and competitions during the 'Event Period' under the terms of the London Olympic Games and Paralympic Games (Advertising and Trading) (England) Regulations. The Event Zones extend for around two hundred metres surrounding each event and venue. The 'Event Periods' run broadly from the 27 July to 12 August for the Olympics and 29 August to 9 September for the Paralympics.
Advertisers engaging in billboard advertising, posters, flyers, giveaways, projected advertising, moving and aerial advertising within an 'Event Zone' during an Event Period are all affected by the Regulations. They do not however apply to internal advertising as long as it is not within 1 metre of an external door or window. The Regulations also apply to trading activity in all open public places within the Event Zones during Event Periods. However, trading taking place within a private building or on private land where trading regularly takes place is excluded from the regulations.
LOCOG required that anyone wishing to engage in these activities apply for a licence. The 'Event Zones' are to be heavily policed during the Games and the lack of the correct licences could result in substantial fines.
The Debate
Whilst it is clear that the key aim of these measures is to prevent non-sponsors cashing in on the games at the expense of sponsors as well as to stop incidences of 'ambush marketing' - a phenomenon made infamous at the 2006 World Cup in Germany - the Olympic advertising restrictions are drafted very broadly.
It is the breadth of their reach which has given rise to some of the more high profile stories of recent weeks. The requirement that a cafe change its name from Cafe Olympic to Cafe Lypmic to avoid breaching the law and the prevention of a doll's Olympic jumper, knitted by a local women, being sold for £1 at a church fete being two recent examples. Tom Hickman, of Blackstone Chambers, has publicly argued that he believes that the right to freedom of expression has in the past been eroded by Olympic host cities and that the situation in London is no different. The right to sport in the Olympic charter is in his view being placed above the established right to freedom of expression. The reality is however that this issue involves more than just the relative importance of rights and freedoms.
Lord Coe has recently defended the measures in the press. He has added a third issue into the debate, the commercial reality. He suggested that rather than be viewed as infringements of the human rights of individuals they should instead be viewed as a necessary means to protect the sponsors paying for the Games. With millions of pounds being paid by the sponsors it is important that the benefits of sponsorship are protected. The state is the ultimate guarantor of the Games so any gaps in sponsorship will be funded by the public purse. The restrictions are in his view the only way to ensure that the burden on the tax payer is minimised. He further noted that prosecution was not the first port of call but instead LOCOG were looking to educate those who are caught by the rules. It is true that in the two headline grabbing incidences mentioned above neither resulted in prosecution, instead the parties were informed of the restrictions and they made the necessary adjustments to comply without the need for any legal proceedings.
It is clear that in the final countdown to the opening ceremony of London 2012, and for the duration of the Olympic and Paralympic Games, the rules are going to be enforced with growing stringency. Businesses big and small, individuals and organisations will need to be extra vigilant when it comes to issues of association with the Olympics to ensure that they stay within the rules. The debate about the rights and wrongs will undoubtedly rage on as more stories of enforcement emerge but the reality is that the rights of sponsors will continue to be protected by those involved with the games as will the official IP of the Olympics, so caution is the best option.
