In anticipation of succeeding at its bid to host the 2014 Common Wealth Games in Glasgow, the Scottish Executive has recently launched a consultation on legislation which, amongst other things, is designed to protect the event from ambush marketing. Tim Coles sponsors the full story.
Who: Scottish Executive
Where: UK
When: June 2007
Law stated as at: 26 July 2007
What happened:
Scottish Executive launched a consultation on a draft Glasgow Commonwealth Games Bill.
Glasgow is currently bidding against Abuja in Nigeria to host the 2014 Commonwealth Games. The successful bidder will be named on 9 November 2007, when each of the 71 Commonwealth Games Associations will gather in Colombo, Sri Lanka to vote for their favoured city.
As part of the bidding process, the Scottish government gave a commitment that, should Glasgow’s bid be successful, legislation to prohibit ambush marketing, eliminate street trading and control advertising space during the period of the Games would be in place by 30 June 2010. This will be followed, around two years before the Games, by the passing of secondary legislation needed to institute the necessary regulations.
The consultation sets out the Scottish Executive’s plans to deal with ambush marketing, but points out that intellectual property is a “reserved issue” under the Scotland Act 1998 and therefore intellectual property provisions will need to be delivered by the UK Government.
What is ambush marketing and how is it done?
Ambush marketing describes the actions of marketers who utilise the publicity surrounding an event such as the Games to promote a brand, without the authorisation of the event organisers. Ambush marketing typically falls into one of two categories.
- Ambush marketing by association – this involves the ambush marketer creating an association with an event through misleading the public into thinking that they are officially connected with the event (this can be achieved in a variety of ways that do not necessarily use the name of the event or its protected symbols).
- Ambush marketing by intrusion – this involves the ambush marketer creating an association with an event through proximity to, or intrusion into venues where the event is being held.
Existing intellectual property laws such as the Trade Marks Act 1994, the Trade Descriptions Act 1968, the Control of Misleading Advertising Regulations 1988 and the common law of “passing off” already offer some protection against ambush marketing activities. However, the short-term, high-profile nature of events such as the Games leaves them vulnerable to ambush marketing strategies which could successfully operate within the law.
It is intended that the Bill will fill the gaps in the current legal framework to allow the Games to take place “free of ambush marketing and unregulated commercialisation”. The Bill will address these issues through the creation of an “association right” (similar to that in the London Olympic Games & Paralympic Games Act 2006) and through the creation of advertising and street trading offences.
Provisions of the proposed Bill
The scope of the proposed Bill is as follows:
- The Trading Offence
- It will be a criminal offence to trade within the vicinity of a Games event during the Games period without authorisation.
- Where trade takes place within a building, the building will be exempt unless that building is a car park.
- This will be a summary offence punishable by a fine not exceeding £20,000.
- Following consultation with the Organising Committee, Ministers will designate in secondary legislation the areas and periods during which the restrictions will apply.
The Advertising Offence
- It will be a criminal offence to advertise within the vicinity of a Games event during the “Games period” without authorisation.
- This will be a summary offence punishable by a fine not exceeding £20,000.
- Following consultation with the Organising Committee, Ministers will designate in secondary legislation the areas and periods during which the restrictions will apply.
Ticketing – The Touting Offence
- It will be a criminal offence for an unauthorised person to sell, offer, or expose for sale a ticket for the Games or any associated official event at a price greater than its face value.
- The penalty on conviction will be a fine not exceeding £5,000.
Enforcement
- Organising Committee to appoint Enforcement Officers (likely to be Local Authority employees) who will be empowered to enforce the Trading, Advertising and Ticketing offences.
- It will be an offence to obstruct Enforcement Officers in the conduct of their duties, which will be a summary offence punishable by a fine not exceeding £3,000.
The Enforcement Officers will be empowered to:
- seize or cover offending material; and
- enter and search any place where they believe an offence is being committed, or that is being used in connection with an offence.
Transport
- The Organising Committee will develop a transport plan for the Games in consultation with Local Authorities and the Scottish government.
- Local Authorities will be given the power to make Games Traffic Regulation Orders to create Games Lanes.
- It is proposed that following a consultation process, relevant Local Authorities will agree to keep their sections of the Games Route Network open and free from obstructions and to institute the necessary Games Traffic Regulation Orders.
- There will be a reserve power for Scottish Ministers that will allow them to direct a Local Authority to make, vary or revoke any instrument which regulates road use to ensure the functionality of the Games Route Network.
Compulsory Purchase Powers
- Local Authorities will have the power to issue Compulsory Purchase Orders for land which they consider necessary for Games purposes.
Grant Making Powers
- Ministers to pay grants and provide other forms of assistance to the Organising Committee of the Games and set such conditions as they see fit.
- The Organising Committee will be responsible for delivering the Games and ensuring that the commitments given in the Candidate City File are met.
Sunset Clause
- This clause will ensure that the legislation will expire a reasonable period after the Games have ended.
Why this matters:
It is of course no surprise that anti-ambush legislation will be enacted to protect the commercial interests of official sponsors of the Games. However, what may be of concern to marketers is the increasing international trend for the introduction of ever more draconian and extreme measures to protect the interests of official sponsors, at the cost of advertising and athletes’ revenues, commercial free speech and often bad PR. (See previous marketinglaw.co.uk articles on Ambush Marketing).
Historically a degree of ambush marketing has been allowed in the UK, but the introduction of the London Olympic Games and Paralympic Games Bill marked a watershed as the government bowed to pressure from event organisers to introduce specific anti-ambush laws that went beyond the traditional protections. While the Bill seems to offer no particularly unpleasant surprises, given the current anti-ambush marketing climate, the question remains how far will the subsequent Act and associated secondary legislation go? It seems highly unlikely that the legislation will do anything other than turn up the heat once again on marketers. Ultimately, the devil will be in the detail.
The Scottish Executive is of course seeking views on its proposals and the consultation documents are available at www.scotland.gov.uk/consultations. The Consultation closes on 21 September 2007. Additionally, the UK Intellectual Property Office, who are in discussions with the Scottish Executive as to what intellectual property provisions will be needed to prevent ambush marketing at the Games, are also requesting feedback. Comments should be emailed to policy@ipo.gov.uk by the closing date of 21 September 2007.
Tim Coles
Trainee Solicitor
Osborne Clarke, London
tim.coles@osborneclarke.com
