‘Ambush marketing’ is a form of unfair marketing, which has been described as ‘parasite marketing’, although those engaged in it would characterise and justify it as ‘clever marketing’. Basically, a company or firm claims an association with a sports event which it does not have, and - perhaps more importantly - for which it has not paid a penny. In such a case, sponsors do not get value for the considerable sums that they have expended on the particular sponsorship. Sponsorship is a multi-million dollar industry worldwide and sports sponsorship represents some 88% of the total in terms of numbers and value! So, there is a lot at stake.
‘Ambush Marketing’ not only adversely affects the interests of official sponsors, it also dilutes the value of major sports events and causes confusion to consumers and fans. Depending upon the facts and circumstances of the particular case and depending also on whether the sports event is protected by a special law or statute - in order for a country to host the Olympics, such a law protecting the Olympic marks and designations must be passed - it may be possible to obtain a court injunction or an award of damages in cases of breach of the rules.
Combatting ‘ambush marketing’
There are a number of legal and non-legal methods of combatting ‘Ambush Marketing’. For example, the International Olympic Committee (IOC) has introduced a ‘naming and shaming’ procedure in which offenders are exposed in a press conference! This seems to have been quite effective on occasions, but must be handled discreetly to avoid any claims of defamation – trade libel/injurious falsehood.
Another method of combatting ‘ambush marketing’, which takes many creative forms, are detailed and sophisticated so-called ‘brand protection programmes’ created and strictly enforced by major sports event organisers. For example, an elaborate scheme was put into action and successfully implemented during the 2002 Salt Lake City Winter Olympics, with particular controls in place to prevent unauthorised advertising around the venues.
Likewise, strict and comprehensive rules, having the backing of statutory law, have been put into effect by the Organising Committee (LOCOG) of the London 2012 Summer Olympics. According to LOCOG, the legal and also commercial raison d’être for them is as follows:
‘The value of the London 2012 brand is vital to the funding of the Games. You can help support London 2012 by understanding and respecting the need to protect the brand, and by not using our emblems or otherwise creating an association with the Games unless you are sure you are entitled to do so. The hundreds of millions of pounds necessary to organise the Games must be raised by the London 2012 Organising Committee from the private sector – by selling sponsorship, official merchandise and tickets. To raise the necessary revenue, the London 2012 Organising Committee must be able to give its sponsors an exclusive association to London 2012 and the Olympic and Paralympic movements in the UK. As such we must prevent other companies undertaking unauthorised activities which damage our sponsors’ exclusive rights. If anyone could use the 'Games' Marks' for free, or otherwise create an association with the Games, sponsors and merchandise licensees would not want to invest in the Games.’
The London 2012 official website (www.london2012.com) includes a useful summary of the rules and explains what is permitted and what is not, and also warns offenders of the serious legal consequences that may follow from any breach of the rules.
The London 2012 Olympic Games marks and their legal protection
So, what are the ‘Games marks’ that sponsors pay substantial sums to use and be associated with and that need, therefore, to be legally protected? They are the following:
The Olympic symbol
The Paralympic symbol
The London 2012 Olympic and Paralympic emblems
The words ‘London 2012’ and ‘2012’
The words ‘Olympic’, ‘Olympiad’, ‘Olympian’ (and their plurals and things very similar to them – e.g. ‘Olympix’
The words ‘Paralympic’, ‘Paralympiad’, ‘Paralympian’ and their plurals and things very similar to them – e.g. ‘Paralympix’
The Olympic motto: ‘Citius Altius Fortius’ / ‘Faster Higher Stronger’
The Paralympic motto: ‘Spirit in Motion’
The Team GB logo
The Paralympics GB logo
The British Olympic Association logo
The British Paralympic Association logo
London2012.com (and various derivatives)
In what ways are the ‘Games marks’ legally protected? Some of them are registered as trademarks in various goods and service classes under the Nice Classification, whilst others benefit from copyright protection, particularly as ‘artistic works’. Additionally, in the UK, special laws have been passed to give extra protection to some of the ‘Games marks’ The Olympic Symbol etc. (Protection) Act 1995 (OSPA) protects the Olympic and Paralympic symbols, mottos and various words, including Olympiad(s), Olympian(s) and Olympic(s).
The London Olympic Games and Paralympic Games Act 2006 (the ‘2006 Act’) prevents the creation of any unauthorised association between people, goods or services and London 2012. Thus, the Games Marks can only be used with the express authorisation of LOCOG. Such authorisation has been granted to official sponsors, suppliers, licensees and non-commercial partners. Of course, such parties must act strictly in accordance with the terms and conditions of their respective agreements. Sponsors and others, who have been granted rights to be associated with London 2012, are listed in the statutory register which LOCOG is required to maintain under the provisions of the 2006 Act.
However, as regards the use of the name ‘Olympic’, businesses that have traded under an ‘Olympic’ name for many years (pre-1995) are allowed to continue to do so under the legislation. In other words, such businesses enjoy so-called ‘grandfather rights’.
Also, the words protected by OSPA can be used in editorial news pieces without LOGOC authorisation and journalists are, in certain circumstances, able to use the LOCOG emblem to illustrate an editorial piece about the Games. But, this exception does not apply to businesses that produce newsletters, client bulletins or other marketing material.
Furthermore, the use of marks and logos that are confusingly similar to the ‘Games marks’ is also prohibited. So watch out any potential ‘ambush marketers’!
Legal remedies and issues
LOCOG is prepared to take legal action against infringers in order to protect the ‘Games Marks’, which includes obtaining Court orders for the seizure of unauthorised merchandise and the payment of damages for breaches of the rules. You have been warned!
But what about local traders and businesses that operate on a relatively small-scale and wish to enter into the spirit of and promote the Games in their communities? They could fall foul of the ‘Ambush Marketing’ rules if LOCOG adopts a zero tolerance approach in all cases.
Hopefully, in such cases, LOCOG will take into account the particular facts and circumstances of each case and exercise a certain degree of discretion, and not adopt the strict and unbending approach of FIFA in the 2010 World Cup in South Africa and take legal action against all infringers, irrespective of the circumstances. The South Africa World Cup local organising committee brought 450 Court cases against ‘ambush marketers’ of all kinds and were criticised for doing so, especially when picking on small traders! Rightly so, in the opinion of the author of this article. Discretion, as they say, is the better part of valour!
Again, what about the use of the protected word ‘Olympian(s)’ which, under the OSPA, may not be used without LOCOG authorisation? Supposing an advertiser wishes, in the advertising of their goods or services, to congratulate ‘so-and-so’ as a fine Olympian during the Games, this, technically speaking, is prohibited. A number of commentators consider that this goes too far and is an infringement of the right of free speech, which includes ‘commercial speech’ (i.e. advertising)! In any case, would this actually amount to ‘ambush marketing’. Once more, there is a need for some discretion.
Whilst there are strong legal and commercial grounds for cracking down on ‘ambush marketing’, LOCOG would be well advised to remember the old age that ‘circumstances alter cases’ and apply the rules with a certain degree of discretion and common sense.
Otherwise, there will be PR disasters and the valuable goodwill associated with organising and holding the London 2012 Olympics, which have been described as ‘the greatest sporting show on earth’, will be damaged and undermined!
Finally, the line between ‘ambush marketing’ and ‘clever marketing’ is not always easy to draw in practice. But that is where the lawyers come in!