IP: Olympic effort to stop ambush marketing

Officials are carefully watching for all forms of infringement at London’s summer games

The Olympics are coming to London this summer and everyone wants a piece of them. Back in 2007, local butcher Dennis Spurr decorated his "Fantastic Sausage Factory" with a sign featuring "2012" and sausages in the shape of the famous Olympic rings. But his signage didn’t survive long, as he was ordered to remove it soon after.

At the time, such an event was newsworthy, and even controversial in some quarters. But it is only now, just months before the Games begin, that businesses are finally coming to terms with just how restrictive the anti-ambush marketing legislation really is.

Ambush marketing—the practice of non-sponsoring companies promoting their goods off the back of a sporting event—has always been a problem for the Olympics and other international tournaments. At the 2006 soccer World Cup in Germany, a group of fans famously ended up watching a game in their underwear after officials confiscated their Dutch Bavaria Beer orange lederhosen.

Bavaria tried the stunt again at the 2010 soccer World Cup in South Africa with a more sophisticated and high-profile ambush. In the run-up to the tournament, the company arranged for a well-known Dutch celebrity to model an orange mini-dress for the brand. The mini-dress therefore became associated with the brand in the minds of Dutch consumers, even though it bore no obvious branding. The beer company then organized for a group of 36 young women wearing identical orange mini-dresses to attend a game. The television cameras found them and the image was broadcast to the world, much to the chagrin of Budweiser, the event's official sponsor. The women were ejected from the stadium, but the damage had been done.

Global sponsorship spending on the Olympic Games has risen from $2 billion in 1984 to an estimated $43.5 billion in 2008. The event's organizers and sponsors cannot, therefore, afford to allow ambush marketing to happen.

Names, logos, symbols, words, mottos and phrases relating to the Olympics, Paralympics and, specifically, the London 2012 Games (Games Marks) are protected by a combination of copyright, registered trademarks, registered EU community designs, common law and specially crafted legislation.

The Games Marks (which include the five ring symbol, the Olympic torch, the words "Olympic" and "Paralympic", and numerous variations thereof) cannot be used in the course of trade without the necessary consents. That much will be obvious to most, if not all, readers of Inside Counsel.

However, under the London Olympic Games and Paralympic Games Act 2006, it also is an offense to use “any representation” that is likely to suggest to the public that there is an association between your goods or services and the Games if you are not an official sponsor or licensee. The concept of association includes any kind of contractual, commercial, corporate, structural or financial connection.

This creates real difficulties for companies that want to make the most of the Games and the business opportunities they will present. Businesses with a presence in London also will be keen to capture the increased footfall, and celebrate the Games with employees and customers. But restrictions in relation to the Olympics are very wide and very strict.

When considering whether an infringing association has been created, a court may take into particular account the use of certain combinations of proscribed words and phrases, such as “Games,” “Summer,” and “2012.” Some of these phrases are almost unavoidable when mounting a seasonal campaign, but marketers will need to tread extremely carefully.

Mistakes are costly. Infringement of some of the controlled rights is a criminal offense. In particular, the sale or advertisement of goods that bear the Games Marks may be a criminal offense. Civil claims also can be brought by The London Organising Committee of the Olympic Games and Paralympic Games Limited (LOCOG). Remedies for those civil infringements include injunctions, financial damages, surrender of infringing goods and an account of profits made by the infringer.

LOCOG are expecting business to be sporting (pun very much intended) and to comply with both the spirit of the legislation and the word. But for some, the rules are much too strict and there will be many who fall foul of them without even realizing that their activities are prohibited. 

Contributing Author

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Robert Lands

Robert Lands is head of intellectual property and media at Central London law firm, Finers Stephens Innocent LLP. He specializes in intellectual property and related...

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