London 2012: Olympic IP Tightrope
By Fellows and Associates’ independent correspondent Samuel Ali.
Parliament has been criticised by some, including the
Chartered Institute of Marketing, for handing the London 2012 Organising
Committee (LOCOG) too wide a legal regime with which to enforce the Olympic
commercial monopolies purchased by its exclusive sponsors and licensees. New
legislation has been passed for London 2012, bolstering the Olympic IP
protection regime, in particular, to combat the threat of so-called “ambush
marketing”. The legislation aims to strictly control who can associate
themselves with London 2012. However, for the sake of protecting its
sponsorship revenue, it will be in the Organising Committee’s interests to
police Olympic-related IP reasonably to avoid negative publicity.
LOCOG argue that the London 2012 brand is their most
valuable asset and that they require strong powers to safeguard it to ensure
that corporations continue to enable the funding of the £9 billion event. According
to Sponsorship Research International, the Olympic rings are the most
recognised symbol in the world. 81% of global respondents to a survey conducted
by the researcher said that they associated the rings with “success and high
standards.”
The International Olympic Committee, the corporation who own
the major rights of the Olympic Movement, are careful to maintain the
exclusivity of their brand. They insist on “clean venue” broadcasting of the
event, so that stadia are not overly commercialised and seek to prevent
athletes from engaging in non-Olympics sponsorship during the games. Paradoxically,
through this focus on sport over commerce, the IOC has secured $1bn in
sponsorship revenue in the current four-year cycle to 2012. Seven of the IOC’s
top-tier sponsors, the most recent being fast-food chain McDonald’s, have extended
their deals through to 2020.
Unauthorised
associations
In order to protect their sponsors’ exclusive rights during
London 2012, the IOC required that the UK bolster its laws to stop the free
rider using the Olympics for publicity. Already in place, alongside trademarks
such as “London 2012”, copyright, passing off and trade descriptions law was
the Olympic Symbol etc. (Protection) Act 1995 (OSPA) which protected certain
Olympic words and symbols.
The London Olympic Games and Paralympic Games Act 2006,
based on Australian legislation for Sydney 2000, creates the “London Olympics
association right.” This is a new right which prohibits unauthorised associations
made between suppliers/businesses and London 2012. The breadth of these
restrictive powers is potentially very large. The legislation includes a
non-exhaustive list of generic words, such as “Games” and “Summer” which courts
will specifically consider when deciding whether an illegal association has
been made. For example, a pub would fall foul of the legislation if they put up
a sign saying, “Supporting the Games 2012”. Only where the unauthorised association’s
reference to the Olympics is “substantially irrelevant” will it be permitted.
Ambush marketing
Ambush marketing is a form of unauthorised association which
tends to take the form of a publicity stunt. Thus, even though it might be
short-lived, the publicity it garners can go further than ordinary advertising.
The most famous recent example was the stunt organised by Dutch brewer,
Bavaria, at the World Cup 2010, where a group of women were given orange
dresses bearing the company’s name to wear in the stands. At half-time, the
women were ejected and some, for a while, faced criminal proceedings for
violating the exclusive sponsorship rights of Anheuser Busch, whose Budweiser
beer was contracted as the “official beer” of the tournament.
The Olympic authorities are keen to prevent such stunts
which anger official sponsors with their ‘toothpaste effect’ (once out,
difficult to put back in). The 2006 London Olympics secondary regulations
strictly controls who can trade or advertise in the vicinity of the Olympic
events and routes.
Moreover, the 2006 Act permits enforcement officers to enter
premises or land where it is believed unauthorised advertising exists and to
destroy such materials. Using a court warrant, they can use reasonable force to
enter private premises for this purpose.
There were fears that these anti-ambush marketing provisions
could be used to attack public protests. However, the regulations produced
under the legislation permit demonstrations and individuals wearing branded
attire, as long as they are not doing so as an ambush marketing stunt.
Those accused of ambush marketing could face criminal
proceedings, including fines of £20,000 on summary conviction and unrestricted
fines on indictment. It is also notable that Parliament has taken the drastic
step of reversing the burden of proof so that the accused is guilty until they
prove themselves innocent.
Prevention over cure
It will be a public relations tightrope that the LOCOG walk
in trying to defend both the exclusivity of the Olympics commercial brand and
the inclusivity of its public perception. The reality is that even with the
wide legal regime afforded to them, they cannot completely stop creative
Olympics bandwagon marketing. Nike, not a sponsor of the London 2012 and a
company with a history of ‘guerrilla marketing’ has launched this year its
‘Make it Count’ campaign, which presents some its sponsored sportsmen and women
in a series of black and white photos and films. It is clear that this campaign
invokes the Olympics – however, it does not use any of the 2006 Act’s ‘danger
words’ and the association with London 2012 is likely to be hard for LOCOG to
challenge.
It is questionable, too, whether
it is in LOCOG’s interest to challenge Nike. Sportswear company Adidas are an
official Olympic sponsor and might be irritated by Nike’s bandwagon marketing.
However, London 2012 will receive some the shine of Nike’s luminous global brand
through the association. If London 2012’s image is boosted, then so is Adidas’,
as long as their prominence as official sponsor is maintained.
A certain level of controlled and
prestigious unauthorised association can, therefore, be beneficial to London
2012. Moreover, heavy-handed response to ambush marketing can backfire, as
seemed to occur from FIFA’s response to the Bavaria Beer stunt during World Cup
2006. Commentators suggest that, as the logo worn by the ambushers was
inconspicuous, had the women been escorted quietly at the end of the match, the
act would not have received much publicity.
Whilst event organisers are strong
in their condemnation of ambush marketing, research studies have differed in
their findings as to the effect on consumers (Shani and Sandler (1989)). This
suggests that a more considered response is required by event organisers. What
is clear is the importance of maintaining event brand prestige to attract
sponsors and to protect and promote sponsors’ statuses once they have signed up
as official sponsors. The London 2012 IP protection campaign has been concerned
primarily with controlling the marketing “noise” around the Olympics, so that
the event and its official sponsors stand tall, proud and uncluttered.
Maintaining pure exclusivity of
sponsors’ rights is an impossibility but the emphasis placed on exclusivity by
London 2012 is aimed at discouraging businesses from unauthorised or ambush
marketing. The effect will be that small and medium sized business will feel
the strongest force of the legal regime. The larger non-sponsor corporations,
such as Nike, will be able to use their vast resources to concoct creative ways
of working around the legislation, so as to benefit from the event. It will not
be in the LOCOG’s interests to challenge such activities, as long as they
remain within certain boundaries.
Thus, it is arguable that the
London 2012 restrictive IP protection legal regime is meant primarily as a
warning to corporations and as an actual compliance tool against smaller
businesses, who lack the prestige to add any brand value to London 2012.
However, the organisers must be wary of how they enforce compliance. Too much
use of coercion against local business, rather than voluntary compliance
through education and guidance, will damage the goodwill that they have
expended so much time and effort honing.
This article reflects the opinion of the author only. If you have any
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