By Malcolm Davies, Partner, Berry Davies LLP
According to a survey in 2001, the Olympic Rings are the most recognised symbol in the world with unaided brand awareness of 93%*. It is unsurprising that businesses clamour to associate themselves with the Olympic brand. When you add into the mix an estimated global audience for the Olympic Games of 3.9 billion viewers in 220 countries it seems like a marketing opportunity too good to miss. Well guess what? The International Olympic Committee (IOC) is very aware of the value of their rights. With a significant proportion of the cost of putting on the show being met by sponsorship, the IOC and their national representatives, the London Organising Committee of the Games and Paralympic Games (LOCOG) vigorously defend their intellectual property against unauthorised use. In the UK, the London Olympic and Paralympic Games Act 2006 (The London Olympics Act) lays down much of the law to prevent the unauthorised commercial exploitation of these valuable rights.The legal framework
To understand the rules it is necessary to know the main players and the registered and un-registered rights that enjoy protection.
In the UK, LOCOG has the job of working with the Olympic Delivery Authority (ODA) to deliver "spectacular and inspirational Games" for the UK and the World. Leveraging the value in the Olympic brand is crucial to LOCOG raising the hundreds of millions of pounds in sponsorship from the private sector to organise and host the Games. The rights at LOCOG’s disposal are a combination of registered trade marks, registered designs, copyright and a new right introduced in the London Olympics Act, the association right.The law
Most Olympic related terms and logos are registered as UK or Community trade marks. In addition, the Olympic brand is protected under copyright, design right, passing off and trade descriptions legislation. Protection for these valuable rights is not new, the Olympic Symbol (Protection) Act 1995 provided for a Olympic Association Right which may be infringed when the Olympic Symbol, the word Olympic, Citius Altius Fortius or similar words are used without authorisation in the course of trade. The London Olympic Games and Paralympic Games Act 2006 created a new London Olympic Association Right giving LOCOG the power to prevent unauthorised associations with the Games. LOAR exceeds the usual protection offered to brand owners with more traditional rights and is infringed by any representation in the course of trade that creates a likelihood of association with the London Olympics.
The 2006 Act also introduces "Listed Expressions". These are in the form of two lists, A and B. List A contains the words Games, Two Thousand and Twelve, 2012 and Twenty Twelve. List B contains the words London, Medals, Sponsor, Gold, Silver and Bronze. Use of any two words in list A or any word in list A with one or more of the words in list B is not permitted.What marketers need to know
At Berry Davies LLP we have firsthand experience of advising decision makers and marketers within companies that have purchased Tier One sponsorship packages. This has included representing them on the LOCOG Sponsors Lawyers group. We have also helped other businesses avoid expensive mistakes by questioning the legitimacy of their Games related marketing plans. We are particularly aware that many business leaders wrongly still think there is still plenty of room around the legislation to get something for nothing.
The laws relating to the 2012 Olympics are probably the most restrictive ever in their scope. This was widely accepted as the price necessary to ensure the degree of exclusivity that will attract the high price tags for official sponsorship packages. For those who cannot or will not pay to use these rights they present a significant barrier to any marketing initiative based on the Games. Even simple messages of support such as "X supports the London Olympics" or "come to our bar and watch the 2012 Games on the big screen" would probably infringe the London Olympic Association Right. LOCOG have provided excellent materials at the London 2012 website. This really is essential reading for anyone seeking to run an Olympic related marketing programme.
It is also worth familiarising yourself with the defences to infringement, these include use that pre-exists the introduction of these rights. Such use will be allowed to continue but expansion of use will not normally be permitted e.g. OLYMPIC HAIRDRESSING trading as such since 1955 would not be able to exploit their rights in the hairdressing name to open an OLYMPIC SANDWICH BAR. There are also provisions for editorial use in news bulletins and journalistic articles. It also provides for honest statements of fact provided this is in accordance with honest commercial practices and not made gratuitously for purely marketing purposes. Infringement is a criminal offence and civil claims may provide LOCOG with remedies such as injunctions, damages and delivery up of infringing articles.
The time has already arrived where businesses should be vetting the legitimacy of any Olympic related marketing plans. Obviously, if you can afford it, you should explore official sponsorship in one of the many tiers available since the only real way of leveraging association with the Games is with official consent. Make sure your whole business, including your overseas operations, know the rules and consider setting up a filter system for all advertising and communications to control your output.
There is a long tradition of ambush marketing around Olympic Games. Creatives love the challenge of circumventing rules. Beware of devising “clever” ambush marketing plans. These rules are stricter than any previously seen and the association right will almost certainly put any unauthorised of Olympic rights within the frame. LOCOG have shown that they are prepared to act when rights are infringed and as the Games approach it is expected that more infringing acts will attract the attention of LOCOGs lawyers.
*AM Wall The Game behind the Games, 91 Trade Mark Rep.1243 (2001)