To complete the unprecedented array of defences lined up to protect official London 2012 sponsors, the almost final version of the London Olympic Games and Paralympic Games (Advertising and Trading) (England) Regulations 2011 has been published. Nick Johnson reports.
Topic: Ambush marketing
Who: UK Department for Culture, Media and Sport (DCMS)
When: November 2011
Where: London
Law stated as at: 8 November 2011
What happened:
The London Olympic Games and Paralympic Games (Advertising and Trading) (England) Regulations 2011 were approved by the House of Commons delegated legislation committee on 1 November 2011. It is expected that the Regulations will now be passed into law very shortly.
The 2011 Regulations supplement existing London 2012 anti-ambush protections, including those under the Olympic Symbol etc Protection Act 1995 and the London Olympic Games and Paralympic Games Act 2006.
While the 1995 Act and 2006 Act created UK-wide “association rights” that are already in force (the “Olympic Association Right” and the “London Olympics Association Right”), the 2011 Regulations will will only apply for relatively brief periods during and just before the Olympic events next summer. They introduce an outright ban on a very wide range of unauthorised advertising activity within the vicinity of those events.
The exclusion zone around each Olympic event is defined by reference to maps.
Subject to some relatively narrow exceptions, advertising activity within the exclusion zones during the protected periods will give rise to a criminal offence, with fines of up to £20,000 available in the magistrates court and potentially unlimited fines in the Crown Court.
Advertising activity for these purposes could include projected images, branding on streakers, use of animals to carry advertising messages, blimps (the zones extend vertically up into airspace), placards, branded attire and items and experiential marketing activity, amongst other things. However individual members of the public wearing branded attire or carrying say branded shopping bags will not be committing a criminal offence unless they know or have reasonable cause to know that they are participating in an ambush marketing campaign.
Why this matters:
The Regulations give the Olympic organisers strong powers to prevent a wide range of ambush activities around the 2012 Olympics. However, as sure as night follows day, you can guarantee that some crafty non-sponsor brands will find loop-holes and opportunities to exploit interest in this major global event without falling foul of the legal protections.
Ambush opportunities within the exclusion zones are likely to be relatively limited, although the Regulations do offer some exemptions that non-sponsors may seek to exploit.
Outside the exclusion zones, brands will need to be careful not to infringe the Olympic Association Right, the London Olympics Association Right or indeed the many other intellectual property rights owned and controlled by LOCOG and the IOC. However we may well see non-sponsors seeking to stage activity around the Torch Relay (which falls outside the protection of the 2011 Regulations and corresponding Welsh and Scottish legislation) and various test events.
Social media and location-targeted advertising are also likely to be key ambush marketing battlegrounds. (Note that the Regulations give a limited exemption for advertising that appears on “personal communication devices” within the event zones.)
Note also that the Regulations effectively reverse the normal “innocent until proven guilty” presumption for directors and other senior officers of businesses whose brands appear in unlawful ambush marketing activity. Those directors will face potential criminal charges unless they can prove either that they had no knowledge of the infringing activity or that than they had taken all reasonable steps to prevent a contravention of the Regulations. This could apply not just to ambushing brands but also potentially to official Olympic sponsors whose marketing agencies happen to overstep the strict letter of the sponsor’s contractual rights. Given the obvious evidential difficulties in proving a lack of knowledge, businesses of all kinds may have to adopt a similar defensive approach to that taken with Bribery Act liability, in implementing and monitoring “anti-ambush marketing policies”.
