Sports sponsorship is big business and, having invested millions, sponsors are keen to ensure that their competitors cannot usurp benefits by insinuating association with “their” event. However, ambush marketing - the practice of making such unauthorised associations - has plagued sporting events in recent years: from Linford Christie’s Puma logo contact lenses at the 1996 Atlanta Olympics (Reebok was an official sponsor) to American Express’ ads telling Americans they did not need a “Visa” to travel to the Lillehammer Winter Olympics (Visa was an official sponsor), the ingenuity displayed by non-sponsors has made it difficult to offer paying sponsors the exclusivity they expect. As a result, the IOC now requires Olympic host nations to take measures to tackle the problem and so, following London’s successful bid, little time was lost in passing the London Olympic Games and Paralympics Act 2006.
The 2006 Act introduced a right of association specifically with the London Games: the London Olympics Association Right (LOAR). The association right confers the exclusive right to create a commercial association with the London Games and will cease to have effect on 31 December 2012. It works in conjunction with other intellectual property rights, such as the Olympics Association Right, which controls use of Olympic symbols, mottos and words. The LOAR is infringed by the use, without consent, of any representation that is likely to suggest to the public an association between the London Games and particular goods or services. While the question of whether an association with the London Games has been created will depend on the overall impression given by the advert or goods, the 2006 Act specifies certain “listed expressions” that the court may take into consideration. The listed expressions are any expression made up of two words from column A or a combination of a word in column A with one or more words from column B:
- •Two thousand and Twelve
- •Twenty Twelve
- The London Organising Committee of the Olympic Games (LOCOG), as the proprietor, has the right to enforce the LOAR, and the Infringement Proceedings Regulations laid before Parliament last month set out the orders the court can make when infringement occurs.
The Regulations provide a number of remedies. Firstly, where a person is found to have infringed the LOAR, the court may order that he or she erase, remove or obliterate the offending representation or, if this is not reasonably practicable, destroy the infringing article. Should the offending party fail to comply with the order, or should compliance appear unlikely, the court may order that the articles be delivered up for erasure, removal, obliteration or destruction, as the case may be. Secondly, LOCOG may apply to the court for an order for the delivery up to it of any infringing goods.
While it remains to be seen how rigorous LOCOG will be in pursuing infringers, it should be understood that the LOAR is potentially very broad in reach: an association can be created even without use of the “listed expressions;” associations can be visual, verbal or aural; and, the cumulative effects of words and imagery may produce an association where alone they would not. As such, those disinclined to spend long nights “obliterating” offending representations with a black marker pen would be well advised to proceed with caution.