Little Chef were not cowed when the guardians of the Olympic brand bore down on their apparently defenceless “Olympic breakfast”, but was the “Daley” monicker a rasher too far? Nick Johnson fries up.
Who: Little Chef, LOCOG, Daley Thompson
Where: UK
When: September 2007
Law stated as at: 30 September 2007
What happened:
The organisers of the London 2012 Olympic games have objected to proposals by Little Chef to use Olympic hero Daley Thompson to promote the roadside diner’s gargantuan Olympic Breakfast.
According to reports in the Daily Mail, Little Chef had contacted LOCOG to discuss its plans to use the double Olympic gold medal winner in radio advertising, but LOCOG said the decathlete’s voice could only be used if his identity were kept secret.
Why this matters:
LOCOG has pretty broad rights under the ambush marketing provisions in the London Olympic Games and Paralympic Games Act 2006 to prevent traders from using the word OLYMPIC and various other Olympic/2012 references without its authority.
But by virtue of paragraph 10(1)(c) of Schedule 4 of the Act, the “grandfathering” provisions of section 4(11) of the Olympic Symbol etc (Protection) Act 1995 apply so as to permit an undertaking to continue use of a controlled representation (such as OLYMPIC) for its own purposes if:
“…the way in which the representation is used for the purposes of the undertaking is a way in which it has been continuously used for those purposes since a date prior to commencement of [the 1995 Act].”
So because Little Chef has been using the name “Olympic Breakfast” continuously for nigh on twenty years now, it can continue to do so provided it sticks to using it in the same way.
However while LOCOG would be right in arguing that the exception in the Act does not give Little Chef carte blanche to use Olympic references generally or to suggest an association with the London 2012 Games, its rights to challenge advertising fronted by Daley Thompson (or other Olympians) must be open to question.
Presumably LOCOG are not arguing that use of a former Olympian in this way gives rise, in and of itself, to an infringement of the “London Olympics association right” created by the Act. For this to succeed they would need to be able to show that use of such an individual would be likely to suggest to the public that there is a contractual or other association between Little Chef and the London 2012 Olympics. That does not sound like a particularly compelling argument. And it would be very bad news indeed for the likes of Thompson, Holmes, Redgrave and other British Olympic heroes if LOCOG were to pursue such a line.
So we can only assume that LOCOG’s position is based on a narrow reading of s.4(11) of the 1995 Act, such that Little Chef can only use the OLYMPIC BREAKFAST name in those media and creative contexts in which it has been used continuously since before the 1995 Act’s commencement. On that basis, Little Chef’s permitted use would probably be restricted to use in its menus, and only then if the menus had not undergone any redesign since 1995. Is this really what Parliament intended? And would this be compatible with rights of commercial freedom of expression under the Human Rights Act?
