The Olympic Games and your brand

This article first appeared in Intellectual Property Magazine, 1 June 2012.

With the Olympic Games fast approaching marketers are increasingly aware of the potential value to be had from associating their brand with one of the world's largest sporting spectacles.  The likes of Adidias, BP, BMW and British Airways have already staked their claim by becoming official sponsors of the event and paid sponsorship fees for the rights they have been granted.  Now, with the opening ceremony less than 100 days away, other brands are looking for unofficial ways to associate their brands with the Games.  This is no easy task.  The organisers of the Games have learnt from past experiences and use a combination of statutory and practical measures to reduce the effectiveness of unofficial associations.  Although restrictions are tight, there remain opportunities for an association.

In order to see the opportunities for associating a brand with the Games it is essential to understand the restrictions that are imposed. The most obvious way to associate a brand with the Games is to use an aspect of the London 2012 Olympic Games brand.  For example, by including the Olympics five rings logo in advertising material.  However use of the brand is highly regulated.

Intellectual Property Rights

All of the key words, phrases and logos relating to the Games generally and the London 2012 Games specifically (the "Games Marks") are protected by traditional intellectual property rights such as copyright, registered trade marks and designs.  The London Organising Committee of the Olympic and Paralympic Games ("LOCOG") and the International Olympic Committee ("IOC") reserve use of the Games Marks for their official commercial partners, sponsors, suppliers and licensees.  These sponsors pay sponsorship fees for the exclusive right to use the Game Marks in relation to their business category.  These fees provide essential funding to enable the Games to take place.  Of course, in return for the their fees the official sponsors expect LOCOG and the IOC to protect the exclusivity they have granted and take appropriate action any third party using the Games Marks without permission. 

Marketers should certainly avoid using any of the Games Marks (or marks that are confusingly similar to them) without permission as to do so is likely to infringe the owners' intellectual property rights in them.

The "Association" Rights

By their very nature high profile events attract attention and brand owners know the value of being associated with them – whether officially or not.  One common form of unofficial association with an event is "ambush marketing".  This expression describes marketing activity conducted by a brand owner that is not an official sponsor but which nevertheless suggests an association with the event.  The result is that consumers associate the event with the unofficial brand, rather than those brands that are official sponsors.  Marketers are, by necessity, creative so there are a number of ways to mount an ambush marketing campaign.  A classic example of ambush marketing was at the 1996 Olympic Games in Atlanta.  Nike cleverly bought up property and billboards surrounding the Olympic village and plastered them with Nike branding.  Nike also gave out hundreds of banners displaying the Nike logo for people to wave in the crowds.  The combination of all of this meant that people at the Games, and those viewing the Games at home, were given the impression that Nike was the official sponsor of the Games.  In fact, Reebok was the official sponsor.

Event organisers have learnt their lessons from such campaigns.  Most major events now have rules and regulations to combat ambush marketing and to protect the investments being made by the official sponsors.

The London 2012 Games is no exception.   The Advertising and Street Trading Regulations impose tight controls over the advertising that can take place in and around Olympic venues (this includes use of flyers etc.)  Regulations are supplemented by practical measures such as LOCOG buying up most of the advertising space in these areas so as to avoid a repeat of the ambush marketing tactics employed by Nike.

The protection afforded by traditional intellectual property rights has also been supplemented by two key pieces of legislation which further help to control use of the London 2012 Olympic Games brand, namely the Olympic Symbol etc (Protection) Act 1995 ("OSPA"); and the London Olympic Games and Paralympic Games Act 2006 (the "2006 Act").  OSPA concerns the concept of the Olympics more generally by protecting use of certain Olympic words (including translations) and symbols such as the iconic interlocking rings (known as "controlled representations"), whilst the 2006 Act enhances and compliments OSPA by tailoring protection specifically to London 2012.  Both seek to prevent brand owners from "associating" themselves with the Olympic Games (in the case of OSPA) and London 2012 (in the case of the 2006 Act) unless they have been authorised to do so. 

LOCOG states that the concept of association includes "any kind of contractual or commercial relationship; corporate or structural connection; or provision of financial or other support for in connection with the Olympic/Paralympic Games or the Olympic/Paralympic Movements BUT making a statement of fact will not create an association, if it is made honestly and does not promote goods or services in a context in which the Games are irrelevant."

The London Olympics Association Right ("Association Right")

The Association Right was created by the 2006 Act and grants LOCOG an exclusive right to determine who is and who is not allowed to create an association between their brand and the London 2012 Games.  A company breaching the Association Right may be liable for damages, an account of profits and/or an injunction.

Whether or not an association has been created will depend on the facts of each individual case although the 2006 Act specifies certain "Listed Expressions" which a court may take into account when deciding whether an association has been made.  So, for example, an association is indicated if a marketer uses any two of the following words: "Games", "Two Thousand and Twelve", "2012", or "Twenty-Twelve"; or any one of those words in conjunction with one or more of the following words: "London", "medals", "sponsors", "summer", "gold", "silver" or "bronze".  Use of these expressions must be considered as a whole as use of these words on their own might not necessarily create an association but when considered in the context within in which they are used (for example with other words or imagery etc) may confuse a viewer into thinking there is an association.  

Marketers should be aware that even if they do not use the Listed Expressions, an unlawful association can still be created.  The Listed Expressions themselves are not exhaustive examples.  LOCOG have provided their own guidance and suggest that use of the following might also suggest an association: a depiction of Olympic venues; use of five Olympic colours; use of Olympic style torch/flame; use of words associated with Olympic qualities (spirit, endeavour, friendship, winning, determination); depiction of Olympic sports (particularly several at once); use of XXX or 30th (the 2012 Games will be the XXX (30th) Olympiad).  In determining whether an association is being made the courts are also likely to take account of other factors such as the marketer's past conduct, the nature of the product and the timing of the advertisement particularly if publication or broadcast is “before or during” the Olympics.

Alternative options….

So marketers seeking to associate themselves unofficially with the London 2012 Games must tread very carefully to avoid infringing any of the protections that have been put in place.  Despite the protections, however, unofficial associations are still possible.

Although focussed on athletics the London Games raise awareness of sport in general.   Brand owners can legitimately tap into this raised awareness by associating themselves with sport in general, without any mention of the Olympics.  Combining the ideas of "London" and/or "Sport" in advertising material during the next few weeks may bring London 2012 to mind.  If so, an association with the Olympics is made but, depending on the look and feel of the copy, might be so tentative that it falls outside of the restrictions detailed above. 

A good example of this is Virgin Media's advertisements featuring Usain Bolt.  LOCOG acknowledge that the appearance in an advertisement of an Olympian or Paralympian will not, by itself, create an association with the Games.  However, they reiterate the point that it is the context in which they appear that is important.  Since the Virgin Media advertisements do not use any controlled representations or other images related to the Games, no rights have been breached.  Of course, the marketing messages conveyed in the advertisement must still comply with the CAP Code and be legal, truthful, honest and not misleading.  Only this month (9 May 2012) the ASA has required that one of the advertisements featuring Usain Bolt be withdrawn on the grounds that the pricing claims used are misleading.

Any marketer wishing to employ a similar tactic should act quickly not only because the closer to the Games the higher risk of an association being created but also because the Olympic Charter and IPC Handbook prohibit athletes participating in the Games from allowing their image to be used in any form of advertising during the period of the Games.

Nike has also been stepping up its advertising while carefully avoiding any direct "association" with the Olympics and London 2012.  For example shortly after Beijing handed over the reigns to London, Nike ran various adverts depicting London 2012 hopefuls.  For example, one ad depicts Luol Deng (an NBA basket ball player from Brixton) about to slam dunk a ball into some machinery with the lines "Luol shoots a thousand hoops a day," and "Now he's counting down until he comes home to compete in four years' time. I'll be ready."  More recently at the beginning of this year Nike launched a campaign suggesting that we all step up and 'Make It Count'. The campaign stars a number of the UK's top athletes e.g. Mo Farah making personal pledges for 2012. It then encourages everyone else to join in and announce their own goals on Twitter.  The use of British athletes and phrases such as "…comes home to compete in four years time" and "Make IT Count" clearly hints at London 2012, but since this is an indirect association, these advertisements are compliant.

As well as sport, London 2012 also raises awareness of London so marketers might consider associating themselves with London itself.  This might, for example, be though the use of images of London landmarks or through promotional campaigns with tickets to London as prizes.

Conclusion

The London Games afford their official sponsors some of the tightest protection of any major event.  Any advertising or marketing that raises an association with the Olympics and London 2012 is tightly controlled.  That said there are still options for those that are not official sponsors and that nevertheless wish to associate their brand with one of the biggest sporting events of the year.

David Bond, partner and Phil Bilney, trainee solicitor in Fieldfisher's Advertising & Marketing Group.