With the clock in Trafalgar Square steadily counting down to the Opening Ceremony of the London 2012 Olympic Games, the jostling for a strong marketing position at London 2012 has already begun.
As the single largest broadcast sporting event in the world, the London 2012 Olympic Games and Paralympic Games (the Games) will provide an unparalleled platform for brands to get their message across. The Beijing 2008 Games attracted a television audience of over 4.7 billion viewers – or 70% of the world’s population. 1
But advertising buyers will need to make sure that they comply with the robust regime that is being put in place to prevent ambush marketing. In particular, they should pay close attention to recently proposed regulations. These will severely restrict unauthorised advertising and street trading in relation to the Games, and will impose stringent sanctions for non-compliance.
Special advertising regulations
In March 2011 the UK, Welsh and Scottish Governments issued a joint consultation paper on plans for regulating advertising and street trading in open public places at Games time. Games events will take place not only in and around London, but also in Weymouth, Essex, Cardiff and Glasgow. Accordingly, three parallel sets of regulations are proposed for England, Wales and Scotland (the Regulations).
One of the main aims of the Regulations is to stop “ambush marketing”. Ambush marketing can occur in the context of a high-profile event where, to exploit the interest in the event, non-sponsors suggest that they (or their products, services or activities) are associated with the event – for example, by marketing their brands to live spectators and/or TV viewers. Of course, this takes unfair advantage of the sponsors’ investment and undermines the event organiser’s ability to raise funds for the event.
Legislation at previous global sporting events
Ambush marketing has been a recurring theme at international sporting events. At the Atlanta 1996 Games, a sportswear company, which was not an official sponsor, conducted a marketing campaign in the city that included billboards, banners for waving at the competitions and an enormous promotional centre overlooking the stadium. Since then, the International Olympic Committee (IOC) has required all bidding host cities to commit to take steps to prevent ambush marketing in the proximity of Games venues.
For the Sydney 2000 Games, law-makers restricted advertising within a one-kilometre perimeter of the main venues. Since then, other summer and winter games host cities have taken similar steps. In 2004, the Athens organising committee cut the number of billboards around the city, clearing 10,000 from buildings and city rooftops; during the games the remaining billboards were controlled and offered to the official sponsors. In 2008, the Beijing organising committee ensured that all advertising was strictly controlled – not just on billboards, but on all public transport, at airports and in city streets through use of newly implemented legislation.
Lessons have also been learned from the Vancouver 2010 Winter Games, at which a non-sponsor bank used team colours, fans and the national maple-leaf symbol in an advertising campaign cheering a sporting event, as well as a former ice-hockey champion. The bank denied that it was trying to associate itself with the Games – perhaps because it thought that the organising committee would find it difficult to take legal action against the bank.
The legal framework for the 2010 FIFA World Cup in South Africa went further. This included special courts to deal with infringements and both civil and criminal penalties for unauthorised advertising. Under local bye-laws, all unauthorised marketing activity was prohibited within roughly a one-kilometre radius of each relevant stadium. Notoriously, in a publicity stunt for a Dutch beer company, a group of 36 women wearing orange dresses were ejected from the stadium during the Holland v. Denmark match and some were arrested.
Existing UK legislation
Parliament has already implemented wide-reaching legislation to tackle unauthorised associations with the Games in the form of:
(a) the Olympic Symbols etc. (Protection) Act 1995 (1995 Act); and
(b) the London Olympic Games and Paralympic Act 2006 (2006 Act).
The 1995 Act (as amended) protects both Olympic-related and Paralympic-related properties (for example, the Olympic five-ring symbol, the Olympic motto and the words “Olympic”, “Olympiad”, “Olympian” or anything similar, with the same restrictions applying to the equivalent Paralympic properties). Put simply, any use of the protected marks in the course of trade without the consent of the London Organising Committee of the Olympic Games and Paralympic Games (LOCOG) will result in an infringement, unless one of the limited defences applies. Those defences include: (i) that the use is not likely to cause an association between the user, product or service and the Games; (ii) editorial or journalistic use; and (iii) incidental use in literary and artistic works.
The 2006 Act represents a widening of LOCOG’s powers. Put simply, it grants LOCOG the exclusive right to prevent the use of a representation of any kind in a manner that is likely to suggest to the public an association between (A) the London 2012 Olympic Games and/or Paralympic Games and (B) goods or services (or a supplier of goods or services). This means that infringement need not involve Olympic-specific or Paralympic-specific symbols. The 2006 Act does not currently limit what may or may not create an “association”, but LOCOG has stated in published guidance that an association will be assessed by looking at the advertisement as a whole and considering the cumulative effect of using the words/imagery in question.
Under the 2006 Act there are certain key expressions that a court can take into account when considering whether there is an association. The A-category terms are: “Games”, “2012”, “Twenty Twelve” and “Two Thousand and Twelve”. The B-category terms are: “Gold”, “Silver”, “Bronze”, “London”, “Medals”, “Sponsor” and “Summer”. The absence of these words will not prevent infringement, and this list is not exhaustive; but the inclusion of two A-category terms or one A-category term and one B-category term will create a potential infringement.
The 2006 Act also provides for secondary legislation to be enacted under it to implement certain sections, and some has already been passed (for instance, regulations setting out remedial orders that a court can make in relation to goods, materials or articles that infringe the London 2012 association right). Under the Host City Contract with the IOC, London had to commit to measures against ambush marketing: these included the regulation of advertising and street trading, which are now the subject of the Regulations.
The Regulations
At the time of writing, the Regulations are the subject of consultation by the Department for Culture, Media and Sport (DCMS). The DCMS has asked for input from all those affected by the Regulations (in particular, traders, advertisers, local businesses and residents). The closing date is 30 May 2011.
According to the DCMS, the Regulations are based on three objectives:
(a) ensuring that all Games events have a “consistent celebratory look and feel to them”;
(b) preventing ambush marketing within the vicinity of Games venues; and
(c) ensuring that people can easily access the venues.
All Games events will be covered by the Regulations. The Regulations will only apply in particular areas (Event Zones) during particular periods (Event Periods), and they will override any existing advertising and trading authorisations and licences.
The points for consultation are divided into four main parts, on which the proposals are as follows:
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Advertising activity
A broad, all-encompassing definition is proposed: since ambush marketing continues to evolve, the aim is to ensure that novel advertising tactics will be regulated. The definition will include any word, image (including logos and other forms of branding), sound, costume or representation, whether illuminated or not, which is in the nature of (and employed for the purposes of) promotion, advertisement, announcement or direction.
Accordingly, the Regulations will apply not only to “traditional” types of advertising activity (such as billboards and posters), but also to the distribution of flyers and give-aways, projected advertising (e.g. lasers and light shows), moving and aerial advertising, and advertising in the form of costumes (or which is displayed on clothing) worn as part of an ambush marketing campaign.
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Trading in open public places
The Regulations will apply to advertising activity on public or private land within an Event Zone during the Event Period, regardless of whether it is subject to existing permissions or consents (e.g. from the landowner or the local planning authority). The Regulations will apply to any person who is responsible for advertising activity, whether directly or indirectly.
Accordingly, in addition to holding authorisations and licences under the existing general law, advertisers and traders who operate in open public places will need to be authorised under the Regulations in order to advertise or trade in such areas where (and at the times when) the Regulations apply.
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Event Zones and Event Periods
The definitions of “Event Zone” and “Event Period” remain to be decided.
The Event Zones will include public and private land, waterways and airspace. In most cases, the proposed Event Zone will be limited to the venue and the area a few hundred metres around the perimeter of the venue. For road events, such as the marathon and road cycling, the Event Zone will extend only a few metres either side of the road. In a few cases, the Event Zone will go slightly further to protect routes from a major transport hub and other places where there are strong opportunities for ambush marketing.
There will be specific Event Period(s) for each Games venue. For a few venues, the Regulations will take effect for only two days, covering the day of the event itself and the day before. The longest period that will apply to any one venue is 35 days (for the Olympic Park zone): this is made up of two phases (22 days for the Olympic Games and 13 days for the Paralympic Games) separated by a fortnight in which the Regulations will not apply. The Regulations will cease to have effect on the day after the Closing Ceremony of the Paralympic Games.
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Implementation
The 2006 Act imposes several obligations on the Olympic Delivery Authority (ODA), a statutory corporation created by the Act. The ODA’s roles include: bringing the effect of the Regulations to the attention of persons likely to be affected or interested; acting as the authorisation body for trading (unless it delegates that responsibility to another person); providing advice (and, at the ODA’s discretion, assistance) to those affected by the Regulations; and enforcing the Regulations.
There will be a dual authorisation process under which advertisers and traders can apply to advertise or trade during the Games period:
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LOCOG will be the designated body to authorise advertising. It will permit advertising that does not conflict with the aims of the Regulations, including:
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advertising by a Games sponsor for products within its sponsor product category, including on outdoor advertising sites in the Event Zones;
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the display of decorative Games-related street dressing by local authorities and other organisations, with LOCOG’s agreement;
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advertising by non-commercial partners (including the Greater London Authority, local authorities and government departments) where non-commercial in nature; and
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permanent or customary advertising that is not specifically excepted by the Regulations, but neither suggests that the brand concerned is associated with the Games nor attempts to gain an advantage for the brand due to its proximity to a Games venue (e.g. illuminated signage on the forecourt of petrol stations or for films advertised outside a cinema).
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During the Olympic Games, LOCOG will take account of IOC requirements for “clean venues”; so advertising, whether by sponsors or others, will not generally be authorised if visible from the field of play (except in the context of road races).
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The ODA will be the designated body to authorise trading in open public places: it will authorise traders where there is no risk of compromising the three main aims. If a trader cannot be authorised, the ODA will assist the trader in identifying acceptable alternatives.
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| The Regulations will include several exceptions, such as standard shop signs on business premises that do not require express consent from local planning authorities under the existing law. Similarly, on vehicles that are not mainly used for displaying advertisements (e.g. taxis and buses), advertising will be exempt. For trading, the exceptions will include selling newspapers and trading on private land next to a shop or café where the trading forms part of the usual business of the shop or café.
While the Regulations could be enforced by the police, the ODA will take a lead on enforcement: it will designate local-authority enforcement officers with experience in dealing with street trading and advertising offences (e.g. trading standards officers and street trading enforcement officers).
There is a proposed general defence for breach of the Regulations, where occurring: (a) without a person’s knowledge; or (b) in spite of that person’s taking all reasonable steps to prevent it from occurring or (once aware of it) from continuing. |
Penalties
All advertisers and traders should be aware of these developments, as the penalties for infringement will be robust. The proposed enforcement measures include: an injunction to prevent further use; seizure, removal and destruction of offending items; and damages or an account of profits. There are also criminal offences, which are punishable by a fine of up to £20,000 on summary conviction and an unlimited fine on indictment. The Chartered Institute of Marketing (CIM) has warned that the new rules may be “heavy-handed”; however, the current consultation period is designed to allay these fears as far as possible, while balancing the needs of the official sponsors of the Games.
Research by the CIM suggests that 42% of British organisations are planning on instigating some kind of Games-related advertising. 40% said that they had no understanding of the current legislation and the ongoing consultation, and 46% said that they had a poor (or fairly poor) grasp of the facts. This leaves just 14% of British businesses currently on top of the law, and this is why the consultation is being conducted and concluded in the first half of 2011.
Auction
An unprecedented eBay-style auction for outdoor advertising space worth £250 million opened on 4 April 2011 and will remain open until 1 July 2011, with everything from billboards to laser shows going to the highest bidder among the official sponsors. Industry sources believe that up to £100 million will go under the hammer during this period, with the remaining unsold packages put on sale to advertisers who are not official Games sponsors. This will ensure that the disposal of advertising space is apportioned as fairly and transparently as possible, although the inventory has to be offered to the official sponsors first. Nonetheless, any buyer of such advertising space (who is not an official sponsor) will still need to make sure not to infringe the legal restrictions on unauthorised associations.
Comment
It is no wonder that LOCOG and its sponsors wish to protect rights of association with the Games, given the event’s extraordinary global presence. In a survey spanning three continents, 81% of respondents said that they associated the Olympic rings with success and high standards. 2 According to Sponsorship Research International, the Olympic rings are the most recognised symbol in the world. The marketing value of an association with the Games is correspondingly immense – and all the more prey to potential ambush because of the strict clean-venue policy of the Games.
The proposed Regulations will further enhance LOCOG’s ability to protect the official Games sponsors’ rights from other companies looking to cash in. The DCMS is aiming to ensure that the Regulations, while strict, are not draconian and enable the Games to be a memorable occasion for the right reasons. Given, however, the UK’s binding commitments to protect the Event Zones, it is a question of when, not if, the Regulations will come into force. Equally, it is clear that the sanctions for non-compliance will be significant for serious breaches. Accordingly, advertisers and their buyers should take stock of the Regulations and make appropriate plans for Games time.
The consultation also serves as a timely reminder of the wider implications for unlawful advertising outside the event zones. Inevitably, this will affect a wider pool of advertisers, and not just those that might otherwise advertise on hoardings within the vicinity of the Games venues. The Regulations underline that the no-go zone will, in effect, be worldwide – not to mention strictly policed.
By Gillie Abbotts, Solicitor.
Article written for Entertainment Law Review.
1 Estimates are based on data sourced across 37 markets from The Nielsen Company, AGB Nielsen Media Research, BBM Nielsen Media Research, Finnpanel, IBOPE, TAM India and OzTAM.
2 Ambush Marketing and the Sydney 2000 Games (Indicia and Images) Protection Act: A Retrospective. Volume 8, Number 2 (June 2001).
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