London 2012 Olympics: ambush marketing

“We can all be winners from the Games coming to Britain” announced the Government on the successful London Olympic Bid.

Apart from a few multi-million dollar official corporate sponsors, the advertising industry seemed to disagree. It lobbied fiercely against measures in the Bill to stop ambush marketing in the London Olympics Bill, fearing that the measures would unfairly penalise them and even lead to them being prosecuted as criminal offenders. As a result of this lobbying, the House of Lords has in fact made three amendments to the London Olympics Bill.

To protect official sponsors, the government proposes to ban advertisers from associating themselves or their products in any way with the London Olympics. This is on top of existing safeguards against use of the word ‘Olympic’ and the five ring Olympic symbol.

The draft Bill proposes to create a new ‘London Olympic Association Right’. A bizarre provision stated that an advertiser would be assumed to infringe this right if he were to use any two of the following together: ‘games’, ‘Two Thousand and Twelve’, ‘2012’ and ‘twentytwelve’ or any one of them in combination with: ‘gold’, ‘silver’, ‘bronze’, ‘London’, ‘medals’, ‘sponsor’ or ‘summer’.

The thinking behind this was that any such marketing is parasitic on the activities of official advertisers who have paid for the privilege of a connection with the Olympic Games. The result is draconian, since even innocent phrases such as ‘Visit London in 2012’ would be prohibited.

English law already offers considerable protection against misrepresentation and false impression of official endorsement, including copyright, registered trade marks and designs and passing off. In recent years, top UK sporting organisations have been quick to challenge anyone associating themselves with well known sporting events or bodies. Recent examples include: the Football Association’s copyright action to stop unofficial stickers with football club logos; Arsenal’s trade mark action against unofficial merchandise; and Eddie Irvine’s case against a radio station for using a doctored photograph to suggest that he endorsed it.

The House of Lord’s amendments on March 6 enjoyed all-Party support. The first change is an important one. There had been much concern about the “presumption of guilt”. This has now been amended to provide that, while a court may have regard to whether the list of specific provisions mentioned above have been used in an infringing fashion, there will be no automatic presumption that the law has been broken.

The second amendment places a duty on the Government to consult with the industry before introducing restrictions on the physical location of advertising around Olympic venues. The final change places a similar duty on the Government in respect of any changes it may seek to the list of protected words and expressions contained within the draft Bill. The value and impact of this consultation will have to be seen.

The Bill had its third and final reading in the House of Lords on March 14 and will now return to the House of Commons. The Bill is expected to become law by Easter.

A version of this article first appeared in our Litigation Annual Review January 2006. To view this publication, please click here to open a new window.