The United Kingdom is famed for its sense of history, pageantry and love of maintaining the status quo. It is therefore of no surprise that the legislature in England and Wales rarely turns its attention to the creation of new intellectual property rights. However, in 2006 it did. The momentum was provided by the British Olympic Committee’s astonishing last-gasp-up-on-the-railsagainst- all-odds victory in the bidding race with Paris, Madrid and New York for the 2012 Olympic Games. Whilst the victory reduced some of the nation to tears, critics immediately raised the question of how the Games were to be funded. The answer was partly to be found in the sponsorship dollar (or in this case the pound), to be protected by the London Olympic and Paralympic Games Act 2006 (“the Act”).
London Olympic Association Right
The Act creates a new statutory body, the London Organising Committee of the Olympic Games (“LOCOG”), as well as a new proprietary right, the “London Olympic Association Right” (“LOAR”) that will enable LOCOG to be in a position to grant the exclusivity sponsors want. The LOAR is designed to prevent an unofficial sponsor from associating itself with the London Games without paying the price tag that comes with being granted “official” sponsor status (the traditional “ambush marketing”).
Essentially, the LOAR is a right to be sold to the highest bidder, which will entitle that bidder to associate itself with the London Games as an official sponsor. LOCOG has divided the sponsorship opportunities into three levels or “Tiers One, Two and Three.” LOCOG is set to announce the first of eight Tier One sponsors in March. There are Tier One sponsorship opportunities to be sold in the fields of banking, automotives, utilities, telecoms, insurance, oil and gas, airlines and clothing manufacturers. Rumours have been circling in the press that British Petroleum and British Telecom are set to be confirmed as fellow Tier One sponsors in March for the cool price of £80 million. For this price, they will expect a high level of protection for their investment.
A person will infringe the LOAR by using, in the course of trade and in relation to goods or services, a representation of any kind in a manner likely to suggest that there is an association between the London Games and their goods or services. The concept of association is widely defined so as to include any contractual or commercial relationship, any corporate or structural connection, or any kind of financial or other support in connection with the London Games. The guidance to date suggests that this is far wider than existing trade mark law in England and Wales. Under existing trade mark law, “likelihood of association” has been given a narrow interpretation by the courts that generally requires the public to think that the goods or services have the same or an associated origin (and calling the registered trade mark to mind is usually insufficient). The list of expressions deemed by the Act to give rise to the presumption of infringement of the LOAR suggests that merely calling the London Games to the mind of the public in relation to the goods or services would be sufficient to infringe the right. Therefore, all that is necessary for the presumption of infringement is to create a very general association with the London Games.
Combinations of any of the following words will prima facie infringe the LOAR: Any two of “Games,” “Two Thousand and Twelve,” “2012,” and “twenty twelve,” or any of the previous four phrases with any of “Gold,” “Silver,” “Bronze,” “London,” “medals,” “sponsor” and “summer.”
A person will not create an association with the London Games by making a statement that accords with honest practices in industrial and commercial matters, and where that representation is incorporated in a context to which the London Games are substantively irrelevant.
The use of a registered trade mark in relation to goods or services for which it is registered will not infringe the LOAR. Interestingly, trade marks that are validly registered after the commencement of the Act in the run-up to the London Games (between now and 2012) will also be able to avail themselves of this defence. Therefore, were the corporate/ advertiser to successfully register a mark that used a combination of the words or visually represented an association with the London Games, the corporate/advertiser could possibly take advantage of the defence when using the mark in the lead-up to the London Games. This is something that the forward-thinking advertiser should be looking at now. Further defences are available for the broadcast and print media, as well as other traditional trade mark defences under section 11 of the Trade Marks Act 1994.
London Olympic Games Organising Committee
However, with the burden of proof falling upon the prima facie infringer to avail itself of a defence, it is clear that there is the potential for substantial litigation in the run-up to, during and after the London Games. Whilst it appears that the legislation is very widely drafted, LOCOG has said that it will take a “common-sense” attitude towards the enforcement of the LOAR. To date, no proceedings have been commenced under the Act, so we have little guidance as to their attitude. Whilst it is for LOCOG to police the sale of the LOAR, it is also the enforcing authority in relation to complaints of breach by sponsors. It remains to be seen how this will work in practice, with LOGOC fulfilling the functions of owner, licensor and enforcer of the LOAR. Further, with the seemingly unlimited development of technology, and the increasing number of available platforms for sponsorship and marketing, LOCOG faces a huge task in effectively monitoring the LOAR from now until the London Games.
As with much new legislation, it has thrown up more questions than it has answered. What is clear is that care will have to be taken for all advertisers, whether official or non-official sponsors to the London Games, when picking their way through the legislation, and the planning of sponsorship programs for 2012 should begin now.