The London 2012 Olympics are now just months away, with many official sponsors gearing up their brand campaigns, having spent millions for the privilage of being involved. Some brands will surlely be looking to crash the party however. Melanie McGuirk, head of IP at law firm Pannone discusses the possible implications of such activity.
OLYMPIC fever is gripping the nation with many marketing and brand managers seeing a real opportunity to take advantage of the biggest sporting event to hit the nation for decades.
But be warned – flout the strict rules governing Olympic merchandise and promotional material and you could face an unlimited fine and criminal conviction.
When a city is awarded the right to host the Olympic Games, legislation is passed to prevent ‘ambush marketing’ where businesses attempt to attach themselves to a major event without paying sponsorship fees.
And even for the most subtle of infringements, the courts will clamp down hard. Civil penalties include seizure and disposal of goods, and damages or payment of any profits made on the offending products or promotional material.
A criminal offence may also be committed in relation to the sale of infringing goods. Unless companies are official sponsors, it is a criminal offence to use Olympic themed imagery or language, however subtle, on goods or packing. It is also an offence to sell, hire and distribute such goods.
Penalties in the Magistrates courts include fines of up to £20,000, while the Crown Court has the power to impose unlimited fines.
And the authorities are not afraid to crack down hard. At the FIFA World Cup, where Anheuser–Busch InBev’s Budweiser was the official beer, two Dutch women were arrested for ambush marketing and 36 women ejected from the stadium when they were spotted wearing short orange dresses made by Dutch brewery Bavaria.
While that kind of publicity stunt was somewhat blatant, the most subtle of references or even a play on certain words can be treated as infringement.
During the 2000 Sydney Olympics, Qantas Airlines used the image of athlete Cathy Freeman with the slogan "The Spirit of Australia" which was strikingly similar to the Games’ slogan "Share the Spirit." Ansett Air, the official sponsor of the Games, brought proceedings which were later settled.
The London Organising Committee of the Olympic and Paralympic Games (LOCOG) rely heavily on funding from corporate sponsorship deals, official merchandise and tickets to generate the hundreds of millions of pounds required from the private sector to organise and host the Games.
In return, official sponsors of the Games are given the exclusive right to associate their brands with the Olympics.
The use of words, mottos, mascots or symbols associated with the Olympics and Paralympics is unlawful. Also any depiction of the Olympic rings, Paralympic agitos (the Paralympic symbol in red, blue and green) or the Olympic podium, or the words “Olympic”, “Paralympic”, “Spirit in Motion”, “Team GB”, or “Inspired by London 2012” will, amongst other protected marks, result in infringement.
Furthermore, use of words such as “London”, “medals”, “sponsors”, “summer”, “gold”, and “2012” on merchandise or in marketing campaigns may also amount to an unlawful association with the London Games.
LOCOG has indicated that any representation of the Olympic style torch and flame; the Olympic venues; the five Olympic colours and any use of words or iconic images which evoke the spirit of the London 2012 Games may amount to an unlawful association with the London Games.
Basically the message is - leave merchandise and promotional activity to the official sponsors. The law in this area has become increasingly robust and there are serious penalties for those who fall foul.
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Ambush Marketing – an Olympic headache
Billions of people around the world will be focussing on the Olympics and Paralympics this summer. It is for this reason that many companies may see the games as a marketing opportunity which is too good to miss.
Official sponsorship deals, however, are not for everyone and some businesses will have another agenda altogether: ambush marketing. Being challenger brands might be part of their brand ethos. Others may simply want to refer to what everyone else is thinking and talking about.
Ambush marketing is described by the IOC as "a planned attempt by a third party to associate itself directly or indirectly with the Olympic Games to gain the recognition and benefits associated with being an Olympic partner". The IOC believes that such activities are very damaging to the value of the event and official sponsors' investments in it. However, for the ambush marketer it can be a cost-effective method of obtaining a beneficial association with a prestigious event but without the hefty price tag.
The legal prohibitions on ambush marketing are considered in another of our articles this month. In short, UK legislation prohibits unauthorised commercial associations with the games or the Olympic movement.
The lure of extensive and possibly worldwide publicity means that companies have done their best to associate themselves with past Olympics. The extensive controls in place for the 2012 games have, however, not always been in place to guard against such activities. A number of examples over the last 30 years demonstrate what ambushers have achieved; we consider below how the 2012 regime may have applied to them.
- At the 1984 Los Angeles Olympics, whilst Fujifilm was the official sponsor, its rival Kodak sponsored the television broadcasts and the US track team, causing many consumers to believe Kodak was the Official sponsor. The tables were turned in 1988 when Kodak was the official sponsor but Fujifilm sponsored the US swimming team.
- Sponsorship of national sports teams is still possible but sponsors will have to be careful how they market that sponsorship in the UK, to ensure they do not create prohibited associations with the 2012 games or the Olympics.
- official sponsors will be able to sponsor broadcasts of the Olympics and they will be offered the advertising slots during those broadcasts before they are offered to anyone else.
- In 1992, Nike sponsored Michael Jordan and the US basketball team and, much to the annoyance of Adidas (the official clothing sponsor), Jordan covered up the Adidas logo with an American flag during his medal ceremony.
- Nike's rights to Jordan would be limited: the Olympic Charter prohibits athletes from allowing their image to be used in any form of advertising during the games. In addition, LOCOG has purchased 99% of the advertising space around the Olympic venues and official sponsors will have a first right of refusal.
- However, it is hard to see on what grounds LOCOG could complain about the deliberate covering up of a logo; this is a form of "un-advertising" rather than the advertising which the UK regulation seeks to prevent.
- During the 1996 Atlanta Olympics, Nike (which was not a sponsor), bought up a significant proportion of the billboard space around the venues and built a Nike Village next to the athletes' village (which was under construction during the Olympics but displayed a very prominent Nike sign). Nike also handed out flags to spectators which had a far greater visual impact than the footwear of official sponsor Reebok.
- This kind of activity is now prohibited by "clean venue" regulations, which seek to ensure that no unofficial advertising appears on or around the field of play or is seen by TV cameras.
- The tickets to the games contain restrictions on what spectators can take into the Olympic venues; for example "objects bearing trademarks or other kinds or promotional signs or messages (such as hats, T-shirts, bags, etc) which LOCOG believes are for promotional purposes" are prohibited.
- Even though Reebok was an official sponsor of the 1996 games, Puma achieved huge publicity when Linford Christie wore contact lenses displaying the Puma logo to an Olympic press conference (which Puma had also sponsored).
- Again, this is the kind of activity now targeted by clean venue regulations and the prohibition on athlete advertising during the games.
- Further, the British Olympic Association has set down guidelines requiring athletes to enter into Team Member Agreements which will prevent athletes from advertising for non-official sponsors.
- The official Olympic airline was a victim of ambush marketing the 2000 Sydney games, when Qantas used the tagline "the spirit of Australia" which was reminiscent of the Sydney Olympic slogan "Share the Spirit". This led to many consumers believing that Qantas was the official sponsor, to the dismay of the actual sponsor, Ansett Air.
- This kind of allusive activity is on the boundaries of what might be prohibited: there is no direct connection to the Olympics but the intention of the advertising seems to be to refer to the Olympics. It is examples like these that will test the "association right" to its limits and there may be court cases over the coming months which give much needed guidance (as, at present, we only have LOCOG’s view of what is acceptable).
The 2012 restrictions are therefore much more robust than those seen at previous Olympics and have been designed with ambushers' past behaviour in mind. Whether these will be enough to protect the integrity of the official sponsorship deals remains to be seen. The global rise of social media over the last few years is seeing London 2012 billed as the first truly digital Olympics, presenting unprecedented opportunities for intentional and accidental ambush marketing to “go viral”. We can expect a far more internet and mobile based approach to marketing than ever before. It will be intriguing to see what unofficial sponsors hungry for Olympic publicity will come up with.
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