In the latest of JIPLP's new series of occasional Guest Editorials, contributed by members of the JIPLP Editorial Board, Rachel Montagnon (London-based Professional Support Consultant with Herbert Smith LLP) raises some important legal issues relating to the forthcoming London 2012 Olympic Games. The full text of her Guest Editorial reads as follows:
Olympic bias
Since 2005, when London won the Host City contract for this year's Olympics, there has been an intensity of interest in how the London Organising Committee (LOCOG) would go about the protection of the Olympic image and in the detail of the UK Government's legislative attempts to exclude those who would attempt to take advantage of that image, without paying for the privilege.
The eventual economic climate in this Olympic year could not be more different to that prevailing when London edged past Paris to cross the winning line, that July day in Singapore. Yet even then, when in retrospect, one perceives that funding was relatively easy to come by, the IOC and the London bidders did not lose sight of the interests of the existing Olympic partners nor the creation of an attractive investment opportunity for potential sponsors. Part of London's successful bid package was a draft of the strict legislative and regulatory regime proposed to protect the London Games from ambush marketing and thus protect these interests.
The Olympic Games have enjoyed protection for some time, both in the UK and worldwide, via the Olympics association right (OAR): protecting against the associative use of Olympic words, mottos, and symbols—so-called controlled representations. The OAR became part of the UK's IP lexicon via the Olympic Symbol Protection Act 1995. Awkward and well-publicized examples of ambush marketing at past Olympics highlighted the limitations of traditional IP rights, such as trade marks or copyright, prompting the necessity for the OAR but even this was not always enough to prevent non-sponsors piggy-backing on the Olympic feel-good factor. Marketing and advertising executives are a creative bunch and given one set of restrictions, they happily invent their way around them, as Nike's approach to ambush marketing at the 1996 Atlanta Games illustrated (circumventing the restrictions through branded give-away to spectators and the purchase of a building next to the Olympic village which was then converted into an obviously branded Nike centre).
Often contextual references to the Olympics can create associations as easily as the use of specific words or symbols. This is where the current temporary local Olympic right, the London Olympics association right (LOAR), steps in, providing for infringement by the creation of an association in any form. This extends protection in an attempt to plug any gap in restrictions which non-sponsor creative teams may identify. The LOAR's breadth and lack of specificity attempts to get over the unpredictability of ambush marketing and cover every eventuality.
In its early drafts, the London Olympics Bill came down heavily on the side of the Olympic rights holders, proposing that the use of expressions such as ‘London 2012’ or ‘summer games’ should be infringements of the LOAR. However, following a general outcry over the unworkability and apparent unfairness of such a stance, these phrases became, in the eventual London Olympic Games and Paralympic Games Act 2006, merely indicative of infringement, to be taken into account by the courts when considering whether an association has been created with the London Games. Such a relaxation of the Olympic grip may have dismayed sponsors, but it was necessary to maintain a more widespread goodwill in relation to the Games. The English press pack can quickly turn sour when it gets its teeth into restrictions it perceives as unwarranted or unfair to British business.
Despite this, the rights of association in place this summer to protect the London Olympics are some of the most generously drafted IP rights available. Imagine a trade mark right which does not require confusion to be infringed (even with similar marks) combined with a passing off right for which you do not need to show goodwill (this is assumed) or damage and a generous interpretation of ‘misrepresentation’ (that the infringer is connected to you in any sort of contractual or commercial fashion or may just be giving the impression they have provided you with some financial support) and you have got association rights. Context is all; combinations of images could trigger infringement of the LOAR even without the word Olympic featuring anywhere.
Context does not just apply to the advertisement itself; an associative context can be achieved for an otherwise non-associative advertisement, by its proximity to the Games venues. Thus the most recent restrictions to be issued cover advertising and trading within the ‘event zones’ around the Olympic venues (or along then in the case of the marathon) and preclude advertising and trading within these areas immediately before and during events without LOCOG's consent. Even as the London Olympic Games and Paralympic Games (Advertising and Trading) Regulations 2011 (Regulations) were about to be published, new concerns were obviously arising, since one of the last amendments added ‘animals’ to the list of prohibited advertising vectors.
The courts can order erasure, seizure, destruction, and make orders for damages in relation to infringement of the association rights. Those liable (which includes personal liability for anyone managing or responsible for a property on which there is a breach of the regulations or the director or manager of an entity that is in breach), could face an unlimited fine as well as the costs of police and ODA officials in enforcing the Regulations, with their powers of immediate seizure and entry to private land.
The Olympics appears to be seen internationally as a special case, an untouchable organization where protection should not be questioned. Only in March this year, for example, the Generic Names Supporting Organisation Council classed the Olympics with the Red Cross in recommending that names relating to both organizations were accorded protected status and banned from the first round of gTLD applications, although not without a certain amount of dissent from within the GNSO. Certainly, without protection, sponsors would withdraw and the ‘greatest show on earth’ would become unaffordable. Whether the vision of the world coming together to compete peacefully on the sporting stage, uplifting though it may be, is as significant to the well-being of humanity as the Red Cross's contribution has been over the years, is a debatable question. Let's hope the protection granted to the London Olympics is justified come 27 July. The Queen is making do with much less legislative protection for her Diamond Jubilee, but that's another editorial…
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