Controlling and Coercive Behaviour: Widening the Net
With one year to go until the 2012 Games many businesses are already looking forward to benefiting from the expected economy boost, particularly around London, but beware – there may be problems ahead...
The London Olympic Games and Paralympic Games Act 2006 (“the Act”) introduces some quite groundbreaking methods of protecting the sponsors’ exclusivity against competitive advertising, ambush marketing and ticket touting. The sponsors – and those organising the 2012 Games – are keen to ensure that others cannot obtain similar publicity without paying for it. It is anticipated that the London Organising Committee for the Olympic Games (“LOCOG”) will adopt a fairly broad and robust approach to the Act resulting in there being a spate of litigation next year.
There are exclusive intellectual property rights belonging to the British Olympics Association and LOCOG in the Olympic symbol, Olympic motto and in protected words such as Olympics and Olympians. This is fairly straightforward.
The confusion is likely to arise because of the so called ‘association rights’ which a person infringes if in the course of trade he uses a representation in a manner likely to suggest to the public that there is an association between the London Olympics and (a) goods or services, or (b) a person who provides goods or services. Expressions such as “games”, “2012”, “gold”, “medals” and “London” will infringe if used in certain combinations and for promotion.
The concept of ‘association’ potentially has a wide and uncertain scope. LOCOG has published some guidance in ‘Brand Protection: London 2012’s UK Statutory Marketing Rights’, which gives various examples of possible infringements. Below are three illustrations where an infringement might be committed:
It is difficult to predict how far the courts will support LOCOG’s wide definition of ‘association’. The uncertainty as to what material will actually be allowed presents a great risk for businesses, particularly in London, who are hoping to benefit financially from the 2012 Games. According to the guidance that has been published by LOCOG, businesses can make “non promotional factual statements and provide information”, but that hardly brings about the clarity that is needed. For example, a business might use words which do not themselves create an association with the 2012 Games, but there will still be an infringement if the advert is run with pictures obviously designed to make one think of that association (i.e. an athlete carrying a torch in London).
There are a wide range of remedies available for infringement of the rights referred to above. Civil remedies include “all such relief by way of damages, injunctions, accounts or otherwise shall be available in respect of the infringement of a property right”, together with additional rights such as correction of signs and delivery up and disposal of goods.
There are further provisions in the Act to protect against ambush marketing (i.e. where a non sponsor tries to find some other way of getting their business in front of cameras), street trading and ticket touting and unauthorised promotions of tickets.
The Act is likely to affect any individual or business hoping to make a financial gain from the 2012 Olympics. It is particularly relevant to those trading in the media, hospitality, leisure and travel industries, as well as many other sectors. The courts will probably be inundated with applications for injunctive relief and other remedies in 2012 when the first potential infringements occur. Until then, it would be prudent for any business to be cautious when referring to the 2012 Games in advertising or promotional material over the next 12 months.
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