A nervous disposition
RACHEL KAPILA COMMENTS ON HOW OPERATORS CAN REAP THE BENEFITS OF THE GOODWILL ASSOCIATED WITH THE OLYMPICS, WHILE AVOIDING THE THREAT OF LEGAL CHALLENGE.
You may have read in the newspapers recently about the abandonment of plans by Jamie Oliver to hold a food and drink festival in Hackney, East London. The “Big Feastival” had been scheduled to take place in Victoria Park in summer this year. However, organisers feared that stalls might breach Olympic branding restrictions and have therefore decided to reschedule the event for September, relocating to Oxfordshire.
This is the latest enterprise to fall foul of confusion surrounding the Olympics
marketing legislation. As you may be aware, strict rules have been put in place in advance of the 2012 Games, prohibiting non-sponsor brands from associating themselves with the Games, and restricting trading and advertising activity in the vicinity of Olympic venues.
So what are these rules, and how can you ensure that your business stays on the right side of them?
The Olympic brand has been protected for some time. The Olympic Symbol
etc (Protection) Act 1995 (“the 1995 Act”) prohibits the unauthorised use of
symbols, mottos or logos associated with the Olympics (e.g. the five ring symbol, the Olympic motto and the words “Olympic”, Olympiad”, “Olympian”, etc) in the course of trade, whether or not such use is associated with the 2012 Games.
The London Olympic Games and Paralympic Games Act 2006 (“the 2006 Act”) significantly extends the scope of this protection, through the creation of the “London Olympic Association Right” (LOAR), which is vested in the London Organising Committee of the Games (LOCOG). Put shortly, the LOAR is an exclusive right to the use of any representation of any kind that is likely to suggest to the public an association between the 2012 Olympic Games (or Paralympic Games) and goods and services (or a supplier of goods and services).
The concept of “association” with the Olympics is a broad one. The 2006 Act contains a list of key expressions which are indicative of whether an association has been created (e.g. “Games”, “2012”, “Medals”, “London”, “Summer”), but it is important to note that this list is not exhaustive, and an unlawful association may be created by an advertisement even if none of the listed expressions has been used. In assessing whether an association has been created, the court will look at the overall impression created by the advertisement, taking into account the cumulative effect of the words and imagery used.
Defences under the 1995 and 2006 Acts are limited. They include use of
a registered trademark, editorial or journalistic use, and continuous use
since before the legislation was enacted (“Olympic Cafe trading since 1985” would not therefore infringe the provisions). These rules are supplemented by
secondary legislation, in the form of the London Olympic Games and Paralympic Games (Advertising and Trading) (England) Regulations 2011. The Regulations are designed, according to the Department for Culture, Media & Sport (DCMS), to ensure that the 2012 Games have a “consistent celebratory look and feel to them”, and to prevent ambush marketing. They impose temporary restrictions on advertising and trading in open public places within the vicinity of competition venues during the Games. Breach of the Regulations constitutes a criminal offence, carrying a fine of up to £20,000. It is a defence for a person charged with an offence under the Regulations to prove that the contravention occurred without his knowledge, or that he took all reasonable steps to prevent it.
Impact of the legislation so far
The organisers of the “Big Feastival” are not the first to have their fingers burned by the Olympics legislation. While there has not yet been a test case before the courts, there are several reported cases of businesses which have ‘backed down’ when threatened with action by LOCOG. Perhaps the most notorious is the case of the Weymouth butcher, who, in celebration of his town being chosen as the sailing venue for the Olympics, erected a shop sign featuring the Olympic rings made from sausages. He considered the sign to be a harmless “bit of fun”. LOCOG did not agree. These cases demonstrate that LOCOG will police the legislation strictly and will not hesitate to pursue anyone it considers to be infringing its rights.
So how can operators reap the benefits of the goodwill associated with the
Olympics, while avoiding the threat of legal challenge?
The answer is: with difficulty. In short, the effect of the legislation is to outlaw
virtually any (unauthorised) association with the Games for promotional purposes. LOCOG has issued guidance in this area (available on the London2012 website) which gives examples of statements which (in LOCOG’s view) fall on either side of the line. One example concerns
TV coverage of the Games in pubs. The view expressed in the guidance is that
displaying a poster containing a simple statement – “Watch the Olympic Games here” or “Live coverage of the 2012 Games inside” – is unlikely to infringe the LOAR. However, where the statement is made in such a way as to create an association between the Games and a brand, goods or services, there may well be an infringement, for example displaying a poster which reads “X Brand brewery – watch the Olympics live here”.
Other examples of marketing activity which would probably fall on the wrong
side of the line would be a cafe advertising “Special Olympic breakfasts available all summer during the Games”, or a shop selling confectionary or merchandise decorated with Olympic logos or imagery.
The central message therefore is that, while the 2012 Games may appear to be a golden marketing opportunity, you should exercise considerable caution before embarking on any advertising campaign with an Olympic dimension.
This is a complex area and this article is necessarily only a brief overview. The
London2012 website is a useful source of further information, including guidance on brand protection (www.london2012. com/about-us/our brand/using-the-brand/ index.html), and maps identifying the “event zones” covered by the Advertising and Street Trading Regulations (www. london2012.com/business/advertisingand- trading-regulations/event-maps).
If you remain in any doubt as to whether your marketing plans may infringe the
legislation, it is recommended that you seek independent legal advice.
Kingsley Napley offers advice on marketing and advertising contracts and
disputes including patents, trademarks, copyright, design and advertising rights, sports merchandising and sponsorship.
Rachel Kapila, Barrister, Three Raymond Buildings
Rachel regularly advises and acts for operators of licensed premises, local authorities and interested parties in proceedings under the Licensing Act 2003 and Gambling Act 2005.
For enquiries, please contact Ryan Mowat.
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