In its latest reading in Parliament, significant amendments were tabled to the anti ambush marketing provisions of the 2012 Olympics paving legislation. But how many of these were accepted?
Topic: Ambush Marketing
Who: House of Commons
When: November 2005
Progress of the London Olympic Games and Paralympic Games Bill (formerly London Olympics Bill)
As previously reported on www.marketinglaw.co.uk, the London Olympics Bill was first tabled over the summer. It includes provisions giving the London 2012 organising committee (LOCOG) special statutory powers to combat so-called ambush marketing.
The Bill went to committee stage in October, following which a revised draft was published. This included a key change to the wording of the “London Olympics association right”. Previously the wording had given LOCOG exclusive rights to control any representation used in a manner “likely to create in the public mind an association between the London Olympics and (a) goods or services; or (b) a person who provides goods or services”. This was changed to apply to any representation used 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” (our emphasis). The revised Bill then goes on to list certain kinds of association that would be included within this, e.g. contractual, commercial, funding and structural relationships.
This relatively small change potentially has a very significant impact. The previous wording would have caught any kind of mental association. So if an advertiser ran an ad featuring athletics then this in itself might have put them in breach of the Bill’s provisions. Under the new wording, the London Olympics association right is now about representations that suggest some kind of external association (eg an official sponsorship relationship). This brings the right much more closely in line with, say, the law of passing off. It also raises the prospect that an appropriate disclaimer could prevent an ad from falling foul of the Bill’s provisions.
The second draft of the Bill also included a new defence (at Sch 4, paragraph 1(2)(b)). This provides that a person does not suggest an association only by making a statement which “accords with honest practices in industrial or commercial matters and … does not make promotional or other commercial use of a representation relating to the London Olympics by incorporating it in a context to which the London Olympics are substantially irrelevant”.
The media defence at paragraph 8 of Schedule 4 was also expanded a little, but still remained relatively narrow in that usage of representations relating to the London Olympics could only be used as a “necessary incident” to reporting/information about the Games or as an incidental inclusion in a copyright work.
The Bill then went to a third reading in the House of Commons with various further amendments having been tabled. These included proposals to:
- limit the new rights created under the Bill to the period 31.12.07 to 31.12.12;
- broaden the “media” defence; and
- require the Secretary of State to consult with advertising industry representatives before adding further two-word combinations to the “black list” at paragraph 3.
In the event, none of these proposals was adopted in the Bill. The only noteworthy change prior to the Bill going up to the House of Lords was that its name changed to the “London Olympic Games and Paralympic Games Bill”.
The Bill had its first reading in the House of Lords on 7 December 2005.
Why this matters
The London 2012 organising committee will no doubt be pleased that the anti-ambush provisions in the Bill remain largely intact at this stage. To make ends meet, they need to raise £500m in local sponsorship and official supplier deals. They view the Bill’s anti-ambush provisions as a key way to maximise the revenues they can secure from sponsors.
On the other hand, organisations representing the advertising and media industries continue to be concerned about the impact of the Bill on freedom of expression for advertisers, publishers and broadcasters.