Associating with the London 2012 Summer Olympic Games: A Primer
By Vidya Narayanswamy & Fatema Merchant
The Olympics, regarded as the mother of all sporting events, offers a colossal opportunity for commercial entities to associate themselves with it and capitalise on its immense popularity. The London Olympic Games and Paralympic Games Act 2006 (the “Act”) grants the London Organising Committee of the Olympic Games and Paralympic Games (“LOCOG”), responsible for preparing and staging the 2012 Summer Olympic Games (the “Games”), the exclusive right to allow organisations the privilege to associate their business ventures, goods and services with the Games. While official sponsors will try to make the best of their association opportunity, non-sponsors who have to conduct their marketing, promotional and advertising activities within the framework of the Act will have to exercise immense caution to ensure that they do not indulge in conduct which may subject them to liabilities.
The Act established a new London Olympic Association Right (“LOAR”) giving LOCOG the power to prevent unauthorised associations with the Games. In addition, the Act classifies certain terms associated with the Games into two separate lists and prohibits non-sponsors from using two or more expressions enlisted in the first list in combination with each other as also the teaming up of any word in the first list with any of those mentioned in second. Thus, an entity using generic words like “Games” which falls under the first list in combination with “London” contained in the second list would be liable for infringement.
One of the perks of bagging the official sponsorship is the right to use the Olympic names, phrases, trademarks, logos and designs, which are indispensable to the aura of the event and serve as symbols of recognition. The UK’s Olympic Symbol Etc (Protection) Act, 1995 (“OSPA”) and the Act prescribe certain words, symbols, and other designations associated with the Games (“Protected Marks”) the usage of which without authorization may amount to an infringement.
This article highlights the marketing and commercial activities that may be carried out by the official sponsors around the Games and discusses the limited and qualified rights of association of non-sponsors with the Games.
Sponsor Rights and Limitations
Like other sporting events the world over, the Olympic Games rely on commercial sponsorships as their principal source of funding. Olympic sponsorship has been defined as “an agreement between an Olympic organisation and a corporation, whereby the corporation is granted the rights to specific Olympic intellectual property and Olympic marketing opportunities in exchange for financial support and goods and services contributions.” While the list of sponsors and partners is extensive, four broad categories can be identified – (a) Worldwide Olympic Partners (b) London 2012 Olympic Partners (c) London 2012 Olympic Supporters and (d) London 2012 Olympic Providers and Suppliers.
Worldwide Olympic Partners form the most elite tier of sponsors. They are granted worldwide marketing and promotional rights in a predetermined product category, and funds contributed by them are distributed among the Organising Committees of the Olympic Games and Olympic Winter Games, the National Olympic Committees (NOC) and the International Olympic Committee (IOC). The remaining categories of sponsorship are all encompassed within the Olympic Games domestic sponsorship programme which grants promotional rights within the territory of the host country only. Accordingly, funds generated through these sponsors are used primarily in the planning and staging of the games, the host country’s NOC and the host country’s Olympic team. The list of these two categories of sponsors for the Games is as below:
Worldwide Olympic Partners
|Official LOCOG partners|
In this section, we explore the various promotional and association rights granted to sponsors surrounding the Games in exchange for their financial and other support, and the various limitations that accompany them. This section only provides a general overview of sponsors’ rights as the specific rights granted are in accordance with the terms of each sponsor agreement.
Composite logos and designations
One of the primary association rights granted to sponsors is the right to create and use composite logos comprising the protected games marks along with the sponsors’ trademarks. Some of the Protected Marks and designations that sponsors may be entitled to use are as follows:
- the Olympic Symbol (consisting of the five rings)
- the Games logo, the Games mascots, other Olympic-related marks developed by LOCOG
- designations such as “Olympic Games Partner”, “Airline Partner of the London 2012 Olympic Games, etc.
A composite logo, in simple terms, means a mark combining the logo or name of the sponsor with any of the Protected Marks that the sponsor has been granted a license to use. The sponsors may create these composite logos and use them in their advertising along with the designation allotted to these marks.
For example, British Airways, one of the Games Partners uses the designation, “proud airline partner”, along with a lock-up of the British Airways logo and the Games logo.
Usage of composite logos comes with certain limitations. These may include the number of composite logos that can be created. For example, there can be an agreement between the IOC and the sponsors stating that only three or four composite logos can be made per country, or if the sponsor is a broadcasting company, there can be limitations on the number of times the composite logo is aired on television. Further, sponsors are prevented from stating that their products or services have been “approved,” “chosen”, “accepted”, etc., by the IOC or any national Olympic association.
Use of athletes surrounding the Olympics
Using athletes in advertisements is a long-standing marketing practice in which advertisers hope to associate their service/product with the positivity and spirit that athletes represent. Rule 40 of the Olympic Charter places restrictions on use of athletes and officials from appearing in advertisements, during, shortly before and after the Olympic Games (this period is known as the “Games Period” or the “Rule 40 Period” and has been currently set to apply from 18 July 2012 until three days after the closing ceremony for the Games, i.e., 15 August 2012).
This rule primarily attempts to prevent potential advertisers from engaging in ambush marketing through which they imply an association with the Games by engaging athletes in their promotions and advertisements. However, it also applies to sponsors and partners of the Games. In this context, it prevents unauthorised commercialization of the Games and protects the integrity of athletes’ performance at the Games. For example, sponsors need to ensure that they do not use athlete endorsement in a manner that could bring an athlete into disrepute. All commercial use of athlete endorsement needs to be approved through the Olympic Marketing portal set up by the IOC and as well as the relevant athlete. Sponsors must further refrain from making any suggestions that use of their product by an athlete can enhance his/her performance, or relates in any other way, to the Games. Therefore statements to the effect “ABC cereal powers Bolt for the Olympics” are prohibited. Congratulatory messages, are, however, permitted, and factual and biographical information may be used to introduce or otherwise refer to an athlete.
Sponsorship of the Olympic broadcast
There are usually two types of sponsors of most sporting events – event sponsors and broadcast sponsors. Worldwide Olympic partners and LOCOG partners are sponsors of the Olympic event. Additionally, media agencies broadcasting the Olympic event (such as NBC in the United States and ESPN STAR Sports in India) appoint broadcast partners who sponsor the broadcast of the Olympic event. Certain Olympic partners and LOCOG partners are, as part of the rights package, granted the right of first refusal for sponsorship opportunities in connection with general Olympic-related broadcast. This is to ensure that competitors of event sponsors do not capture advertising spots without the knowledge of the event sponsors, and take away from the publicity and exposure that event sponsors expect to gain from the event.
Each Worldwide Olympic Partner is assigned an exclusive product category. This means that no other company can be granted similar rights to use Protected Marks within the same product category. However, it is possible that certain partners plan contests or offer prizes as part of their Games’ promotional campaign. These prizes are known as premiums. Often, the premiums on offer go beyond the product category assigned to the partner conducting the promotion, and fall within the product category of a different partner. For example, the exclusive product category of Panasonic Corporation is TV/Audio/Video Equipment. They may conduct a promotion surrounding the Games where they offer a laptop for sale. Acer is the exclusive Worldwide Olympic Partner in the laptops and computers category. In such a situation Panasonic may have to – (a) either offer Acer laptops, or (b) refrain from displaying the brand name of the laptops on offer in their marketing communication.
Limited and Qualified rights of Non-Sponsors
Unless a particular entity or an institution is affiliated to the Games through official sponsorship, it is prevented from using any of the Protected Marks as such use would not only constitute an intellectual property rights infringement, but would also undermine the exclusivity of the Olympic brand. The OSPA as well as the London Act provide for various exceptions to the use of Protected Marks. The defences to infringement of the Olympic and Paralympic Association Rights are contained in the Section 4 of the OSPA. Thus, the use of Protected Marks in a statement in accordance with “honest practices in industrial and commercial matters” does not constitute an infringement, provided it is does not make a “promotional or other commercial use of a protected word by incorporating it in a context to which the Olympic/Paralympic Games or the Olympic/Paralympic movement are substantively irrelevant”.
In the light of this provision, it is important to consider Nabisco’s marketing campaign prior to the Sydney 2000 Summer Olympics wherein Nabisco launched an advertisement in the market for its fig biscuits containing a picture of an athlete throwing a discus with the text “The Ancient Olympians worshipped the fig and used it for energy during training”. Though the statement by Nabisco asserted a fact, PowerBar, Inc. the official sponsor of the Sydney Olympics filed a suit against it alleging ambush marketing. The case, however, could not be decided on its merits since PowerBar made an out of court settlement with Nabisco pursuant to which the campaign was withdrawn.
In addition, the use of Protected Marks in the publication of information about the Olympic/Paralympic Games or movement or the incidental use of artistic or literary works is not discouraged as long as it is not with a monetary or commercial objective. A commercial establishment using the Protected Marks or similar expressions may continue such use provided the same has been in use prior to the introduction of OSPA in 1995. The Protected Marks may also be used for judicial purposes.
Apart from the defences provided in OSPA, the LOAR provides some additional defences with respect to the use of marks protected under the said Act and allows such usage in someone’s name and address. In addition, the use of the marks protected by the LOAR, in a product indicating its quality, quantity, value and geographical origin does not lead to an infringement as long as the same is in tandem with the regular industry practices and is not done with a fraudulent intention.
Non-Sponsors – Other Rights and Limitations
An editorial piece that reports on the Games or a segment on television that features a documentary on the history of the Games is unlikely to cause an infringement unless it promotes a particular brand or hints to do so. A report, feature, article, or the like, initiated by a particular brand or paid by one, however, undoubtedly shows a commercial affiliation and may come under the infringement scanner.
In accentuating the journalistic privileges in utilizing the protected Olympic marks and symbols in editorials the case ofUSOC v. American Media, Inc. 156 F. Supp. 2d 1200 (D. Colo., 2001) becomes important. Here, the United States Olympic Committee (“USOC”) filed a suit against American Media Inc. (“AMI”) for publishing a magazine titled “Olympics USA” ahead of the 2000 Sydney Olympics. It was alleged that the magazine had made unauthorized use of the word ‘Olympic’ and the Olympic symbol in addition to other Olympic marks and had attempted to pass off as a product endorsed by the USOC. Though the USOC lost the case as the District Court of Colorado held that the use of the marks by AMI was for non-commercial purposes and not in violation of the Amateur Sports Act of 1978, the result could have been different had USOC also alleged violation of the Lanham Act 1946, and successfully established that the magazine created a false impression of an association with the USOC.
It is important to note here that as much as the Games would profit from wide spread reporting, LOCOG has qualified the freedom available to safeguard the rights of their official sponsors. Thus, a special radio or a television news programme that broadcasts or provides reports on the Olympics may be launched so long as it is not tagged with a commercial brand.
Broadcast and usage of footage
The exclusive broadcasting rights to telecast the various proceedings at the Games rests with the broadcasting partners of the IOC and hence all non-partners and non-sponsors must refrain from broadcasting any footage of the Games as that would amount to an outright infringement. Also, the non-sponsors must not reproduce any footage of the Games to gain commercial leverage such as integrating it into advertisements and similar activities.
Pubs, restaurants, etc., in possession of the requisite licenses are permitted to show live coverage of the Games at their establishments provided the same is not done in association with a commercial enterprise or in a manner wherein the commercial enterprise receives mileage out of the broadcast. Thus, for example, a pub may put up posters and other materials stating that it is showcasing the Olympic Games, however; if such posters contain branding of a commercial entity or states that the footage is presented in association with such entity it may lead to an infringement.
Websites that use Protected Marks and thus give an impression of association will lead to an infringement. The test for determination is the presence or absence of an underlying commercial purpose. Websites offering news, information and reports on the Games are subject to the same limitations prescribed for entities publishing news, updates, discussions and opinions on the Games and thus websites making profit out of reporting on the Olympics by prescribing subscription fees and bringing the same in association with commercial entities may be liable for over stepping the limited privileges assigned to them. In addition, the use of Protected Marks as domain names for micro sites and as icons to facilitate a link to the official London 2012 website is prohibited. Blogging sites predominantly of a non-commercial nature may be exempted from liabilities of infringement.
Companies and enterprises manufacturing or selling sports products and paraphernalia including equipment, sports gear, energy drinks, and the like, which use athletes and their images in their regular advertising activities may continue to do so, provided such advertisement does not create or attempt to create an impression of association of the product or the company with the Olympics or with the Games. For example, companies are prohibited from using the image of the athlete in conjunction with the Protected Marks to endorse their product.
In order to promote the spirit of the Games, non-commercial organisations such as the national bodies for sports in various countries, are given the chance to associate themselves with the Games and make meaningful contributions and encourage national participation, by way of helping deliver a Games programme or event; through the Games ‘Recognition’ programme; and through the Games ‘Inspire’ programme.
A boost in tourism parallel to the Olympics is inevitable and obvious and the LOCOG provides ways in which non-sponsors from the hospitality industry can avail of the benefits arising out of the same without infringing the rights of the official sponsors. Thus, though business enterprises are not permitted to use the Protected Marks, they may make a reference to the Games in their tourism products and services, provided the same does not suggest an association with the Games, is proportionate and in a relevant context and non-promotional. To ensure compliance with the above requirements, enterprises may structure their product in a manner wherein the reference to the Games is not highlighted as opposed to other information in the product and the product is not developed around the Games or keeping the Games as the theme. In addition, tourism products may make a reference to the Games stipulating the services they customarily provide which they intend to extend to the visitors of the Games however; they may not grant special offers to such visitors as that would amount to an attempt to establish an association with the Olympics. However, this provision does not bar business enterprises from designing special tourism products which are targeted to the Games visitors in addition to other tourists.
Advertising and Trading Regulations in the Event Zones
The extensive publicity campaign carried out by Nike at the 1996 Atlanta Games wherein the brand capitalised on the ignorance of the unsuspecting organisers and official sponsors can be regarded as one of most exceptional marketing and promotional strategies by a non-sponsor around the Olympics. Nike stole the limelight by establishing a “Nike Village” in close quarters with the official housing facility of the athletes and ensured substantial visibility of its brand by handing out banners and flags outside the games venues and purchasing voluminous advertising space in Atlanta especially around such venues. The damage caused by such acts, evident from how a greater percentage of television audience believed that Nike was one of the official sponsors of the 1996 Games instead of Reebok, probably led the organisers to realise the potential harm such otherwise-legal advertising activities may cause. To ensure protection to the official sponsors the London Olympic Games and Paralympic Games (Advertising and Trading) (England) Regulations 2011 (“Regulations”) have been formulated to regulate and restrict the commercial activities of non sponsors in and around the venues of the Games during the event.
The Regulations prohibit any person from carrying out an “advertising activity” which means displaying an advertisement or providing for an advertisement to be displayed on an animal, carrying personal property on which an advertisement is displayed, wearing advertising attire or displaying an advertisement on an individual’s body…or distributing or providing promotional material in the “event zone” during the relevant “event period or periods” without seeking an authorisation from the designated authorities under the regulations.
Event Zones and relevant event periods are provided in the schedules to the Regulations. However, there is no blanket restriction on all advertising activity and the regulations permit certain activities. Thus, advertising activity advocating a cause or a campaign or that which proclaims support or dissent to any issue or person is allowed provided it does not endorse goods, services or products. In addition, displaying a non- illuminated mark or inscription is not prohibited so also is an advertisement if the same is done to comply with the laws of UK or any other country governing such aircrafts, or which is done to ensure the safety of the passengers therein or for civil defence and military purposes. In addition, LOCOG has also made trading, i.e., selling an article, supplying a service, making an appeal to members of the public to give money or other property (or both) for charitable or other purposes (whether or not authorised by or under any enactment) and providing public entertainment for gain or reward in open spaces around the Games venue subject to authorisation by the Olympic Delivery Authority (“ODA”). However, the regulations will not interfere with the regular business activities being carried out in and around the Event Zones and only aim at restraining unsanctioned advertising activities and hence activities such as selling a current newspaper or a periodical, selling a motor vehicle on private land generally used for the sale of motor vehicles, providing a permanent telephone kiosk and similar activities.
Merchandise and Ticketing
The Games merchandise distribution is a key source of revenue and the LOCOG has classified the production and reproduction of merchandise by non-licensees as a strict violation of the code laid down by them. This is put to work by the involvement of the police and trading standards offices. In addition, non-sponsors are also prohibited from offering tickets as prizes to the Games to winners and participants of the promotions and competitions conducted by them as that would be in violation of the terms and conditions specified on the tickets.
One of the oldest and most recognised sporting events, the Olympics, has over the years developed and evolved into a brand in itself. The frantic rush and scramble to avail of commercial gains by associating with the Olympics may have compelled the organisers to draft stringent regulations to preserve the integrity of the Games and the entitlements of the official sponsors. Sponsors provide funding, products and services that help the organising committee stage the Olympics, and it therefore becomes necessary to protect the exclusive marketing rights granted to them. However many experts believe that the Act and other protections surrounding the Games which create an “association right” go beyond what is reasonably required to protect sponsors’ rights. Under the legislations, a representation by an entity which “suggests” to the public that there is an association between the event and the entity, is prohibited. The public need not be ‘confused’ or ‘misled’ as to the association, which is the standard required to prove trademark violation or “passing off”. Critics believe that the guardians of the Olympic brand, in their zeal to protect the financial interests of their sponsors, have gone too far. The restrictions prescribed, they believe, could potentially have chilling effects on the ability of the sport-loving public to interact with the event.
As the Games begin so will hectic activity by sponsors and non-sponsors. Time and experience will tell how effective and appropriate the legal measures of protection were in achieving their stated purposes.
Please note that this article is only an attempt by the authors to highlight some of the rights and privileges of the sponsors and some of the limited freedoms of non-sponsors with respect to the Olympic Games. This article does not attempt to provide a comprehensive summary of such rights and readers may visit the website www.london2012.com to obtain a detailed understanding of the same. In addition, nothing in the article is to be construed as legal advice and we request interested persons to seek the assistance and guidance of professionals before undertaking or engaging in any of the activities mentioned in the article.
© The Sports Law & Policy Centre