After a sprint through Parliament, the London Olympic Games and Paralympic Games Act 2006 has now received the Royal Assent. In its final form, will it be as much of a restraint as feared on marketing references to London 2012?
Topic: Ambush Marketing
Who: House of Commons
Where: London
When: 30 March 2006
What happened:
The London Olympic Games and Paralympic Games Act 2006 received Royal Assent on 30 March 2006.
As previously reported on www.marketinglaw.co.uk , the London Olympics Bill was first tabled in the summer of 2005. It includes provisions giving the London 2012 organising committee (LOCOG) special statutory powers to combat so-called ambush marketing. In particular:
Section 19 gives the Secretary of State powers to make regulations about advertising “in the vicinity of” London Olympic events. This section is not yet in force and it is anticipated that any restrictions will apply only to the “London Olympic period” as defined. This starts 4 weeks before the opening ceremony and ends 5 days after the closing ceremony of the Paralympic Games.
Section 33 and Schedule 4 create a new intellectual property right called the “London Olympics association right”, controlled by the London Organising Committee (LOCOG). These provisions are now in force.
These sections of the Bill were the subject of significant lobbying by the advertising sector and went through a number of different drafts. Some key concessions were won but many still question whether the Act strikes the right balance between the commercial interests of the Olympic movement and its sponsors on the one hand and advertisers’ rights of freedom of commercial expression on the other.
In essence, the London Olympics association right now works like this:
It gives LOCOG exclusive rights in relation to the use of any representation “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”.
Anyone using a representation in that manner will, in the absence of a valid defence, infringe the London Olympics association right. So whereas references in an advertisement to “The Games” or “London 2012″ would not have been caught by the existing prohibitions in the Olympic Symbol etc (Protection) Act 1995, they may now be actionable if they would be likely to suggest to the public that there is an association between the London Olympics and the advertiser.
The Act makes it clear that “association” for these purposes includes, but is not limited to, any kind of contractual, commercial, corporate, structural or funding connection.
There is an oddly-worded “honest practices” exemption. This provides that no suggestion of association would be made by a statement which: “(i) accords with honest practices in industrial and commercial matters, and (ii) 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 substantively irrelevant”. This probably for instance makes it permissible for hotels to advertise their proximity to London Olympics venues and the Games. But the test of relevance clearly leaves plenty of scope for argument. Is this relevance in the eyes of LOCOG, the advertiser, consumers or some other set of people? For example, if a TV manufacturer advertises a new model as being “ideal for watching the Games this summer”, would this be a context that is substantively irrelevant for these purposes?
Specific combinations of words (eg “games” and “2012”, “games” and “London” etc) are highlighted at paragraph 3 of Schedule 4. In the original drafts of the Bill, use of these combinations gave rise to a presumption of infringement, thus reversing the normal burden of proof. However, the combinations in the statute as enacted are included merely as guidance to the courts.
Before adding any additional combinations or making any regulations under s.19 as to advertising in the vicinity of venues, the Secretary of State is required to consult with advertising industry representatives.
The Act provides for a number of defences to an action for infringement of the London Olympics association right. These include certain uses of existing registered trade marks (paragraph 6), use of own name/address in accordance with honest practices (paragraph 7(a)) and a media/reporting/incidental inclusion defence (paragraph 8). The media defence has ended up somewhat broader than the provision originally proposed.
Why this matters
In the original draft Bill, the “London Olympics association right” would have given LOCOG exclusive rights to control any representation used in a manner “likely to create in the public mind an association [with] the London Olympics”.
This subtly different wording would effectively have meant that any kind of reference or allusion to the London Olympics, no matter how indirect, would potentially have been caught as an infringement. The test in the Act as passed is rather different and gives advertisers some scope at least for creative references to the Games, competitors etc, so long as those references are not likely to suggest to the public that the advertiser is associated in some way with London 2012 and so long as registered trade marks and the key terms protected under the Olympic Symbol etc (Protection) Act 1995 (OLYMPIC, OLYMPIAN etc) are not used. As “Unofficial Followers of the London Games Legislation” ourselves, we predict an increased interest in the use of disclaimers and inherently disclaiming language…
13 April 2006
nick.johnson@osborneclarke.com
+44 (0)20 7105 7080
www.marketinglaw.co.uk
