As the Olympic flame makes its way to the London Olympic Stadium, marketing departments all over the world are running campaigns that capitalise on the spirit and excitement of the Games. For official sponsors, this means using the Olympic symbols – the rings and torch – and the Olympic name to associate themselves with the event. But for those companies who are not willing or able to hand over the rumoured 100-million-pound fee to become official sponsors, it can mean a quagmire of legal problems.
However, non-sponsors who want to reference the Olympics can do so, with a bit of wit and creativity.
Protection of Olympic name and insignia
Traditionally, the laws of trade marks, passing off, copyright, and designs provide protection for the Olympic name and insignia. Many countries also provide specific protection for them.1 In addition to this, host nations generally enact special legislation to make sure they comply with the strict guidelines for intellectual property protection imposed by the International Olympic Committee. Such legislation usually protects the Olympic name and insignia by giving the exclusive right to use them to that country’s organising committee. The committee may then license the right as it pleases, generally to companies who have paid the asking price. The primary purpose of this protection is to ensure that official sponsors get value from their investment in the Games.
The protection of the Olympic name and insignia doesn’t mean companies have given up on attempting to associate themselves with the Olympics. Over the last two decades there has been a rise in “ambush marketing”, which is an attempt by a brand owner to associate itself with an event without paying any licence or sponsorship fees to the organisers. It is most often perpetrated by brand owners whose rivals are official sponsors. Ambush marketing has traditionally been a grey area of law because it involves the association of the brand with the Olympics without any actual use of the Olympic name or insignia, and is subject to the usual requirements in relation to misleading or deceptive conduct, false representations, and/or passing off.
Ambush marketing can be blatant or quite subtle. An example of a blatant ambush marketing campaign is Nike’s promotional activities at the 1996 Atlanta Olympics. Reebok was the official sponsor, but Nike handed out branded flags for fans to wave at cameras, bought all the outdoor poster sites in Atlanta and covered them with advertising, and set up its own village next to the official Olympic sponsors’ village. A survey showed that most people believed Nike, rather than Reebok, was the official sponsor. A more subtle approach was evident at the same Games when famous British sprinter Linford Christie appeared at a press conference wearing contact lenses with the Puma logo printed on them.
Naturally, this kind of activity makes companies wary of investing large sums of money in official sponsorship. In order to convince potential sponsors that investment is worthwhile, Olympic organising committees have been doing what they can to expand advertising restrictions beyond simply protecting the name and insignia. The legislation enacted in advance of the 2012 London Olympic Games represents the high-water mark for sponsor protection.
The UK legislation
The UK legislation2 sets out a number of strict rules that are intended to curb ambush marketing for the 2012 Games.
The legislation regulates all types of advertising, including by restricting activity during specific time periods and within specific geographical areas. For example, restrictions extend for a few metres either side of the marathon route for a period of two days. Some restrictions, however, are in place for the whole period of the Olympic and Paralympic Games (for example, for the Olympic Park Zone). “Advertising activity” is very widely defined and expressly covers such imaginative strategies as projecting or screening an advertisement, causing an advertisement to be displayed on an animal, and displaying an advertisement on an individual’s body.
However, the aspect of the UK legislation that has the greatest potential to stop ambush marketing is the introduction of a new right called the “London Olympics association right”. This right will be infringed by any person or company who uses, in the course of trade, any representation that suggests to the public that there is an association between them or their goods or services and the London Olympics. The concept of “association” includes any kind of contractual or commercial relationship with the Games, or any provision of financial or other support in connection with the Games.
Statements that are made honestly and that use the protected words in contexts where they are relevant will not breach the association right. For example, the following advertisement would be permissible: “This bed & breakfast is located in Greenwich, just a five-minute walk to the Observatory and next to the Olympic equestrian venues.” In contrast, the following advertisement would breach the association right, because it uses a protected word in a context where it is not really relevant: “X Homes – an Olympic investment not to be missed!”3
The reason the association right is expected to be more effective is that it is directed at preventing a result rather than the activity – it doesn’t just prevent certain types of advertising activity, but actually legislates based on the effect of ambush marketing, being a perceived association with the Olympics. If Nike were to repeat its 1996 tactics in 2012 it would almost certainly infringe the London Olympics association right.
Courts determining whether infringement has taken place may take into account the use of certain Olympics-related expressions such as “games”, “2012”, and “medals”. The legislation also sets out a number of activities that won’t infringe the right, such as various nominative fair use exceptions (for example, news reporting). Infringement of the association right is a criminal offence and fines may be imposed.
Regulation of Olympics-related advertising in Australia
Marketing activities in Australia will not be subject to the UK legislation. However, Australian marketers should be careful about online advertising, particularly if there is any connection with the UK, because it could fall within the purview of the UK legislation. This would generally require that advertising on the website be directed at consumers in the UK, for example by facilitating the ordering of products by UK consumers. The London Organising Committee of the Olympic Games has indicated that internet advertising will be treated in the same manner as other forms of advertising.
Marketing activities in Australia will be subject to the Olympic Insignia Protection Act 1987, which regulates use of the Olympic symbol and certain “protected Olympic expressions” such as “Olympic” and “Olympiad”.4 These expressions must not be used “for commercial purposes”, which means using them in advertising in a way that suggests the user is or was an Olympic sponsor, without a licence from the Australian Olympic Committee. The Act sets out a number of narrow exceptions for certain types of use, such as statements about the supply of goods or services to past Olympic teams or Games.5
Use of the Olympic name and insignia will also be subject to the general prohibition in the Australian Consumer Law of misleading or deceptive conduct (s 18), and the specific prohibition on falsely stating that goods or services have any sponsorship or approval (s 29(1)(g) and (h)).
Breaching the Australian legislation could result in injunctions, corrective advertising, damages or an account of profits, and/or destruction or delivery-up of goods.
Because there is no association right in Australia, local marketers will have a wider scope than their UK colleagues to make references to the Olympics in their advertising, as long as their statements are accurate and do not suggest that they are a sponsor.
Dos and Don’ts of non-sponsor marketing
- suggest the Olympics without using protected expressions or appearing to be a sponsor (for example, “Gold medal deals”);
- use protected Olympic expressions in a descriptive way to refer to the event (for example, “If you’re travelling to the Olympics, come in and buy one of our lightweight raincoats!”);
- use past Olympians to promote your products, as long the advertising does not suggest that you are or were a sponsor of current Olympians or Olympics, and as long as the past Olympian consents; and
- use advertising that is different from that used by official sponsor companies.
- use “Olympic”, “Olympics”, “Olympic Games”, “Olympiad”, or “Olympiads” in advertising in a way that suggests that you are or were a sponsor (for example, “Buy our raincoats in support of the Australian Olympic team!”); or
- use any of the designs on the Register of Olympic Designs (for example, the Australian flag and Olympic rings, as shown here: Click here to view diagram); or
- state that your goods or services have Olympic sponsorship or approval; or
- refer to the Olympics in a way that might cause people to think you are connected with the Olympics or are a sponsor (eg, “Buy these raincoats in support of the Australian Olympic team!”).