Promotions and the Olympics: marketing your way into trouble

Promotions and the Olympics: marketing your way into trouble

Julian Sampson

Did someone mention the Olympics? Anyone seen (or sold!) an Olympic torch? Is your business planning to create a masterful marketing campaign around the Olympics? Best not. In financial services, we are used to dealing with financial promotion rules, so adding another layer to our compliance isn’t going to be popular but avoid at your peril.

We are all looking forward to our Summer: starting with the Jubilee and pushing on towards the Olympics, and it seems a perfect opportunity for businesses to offer goodwill generating prizes around these events. But include the “O” word and you may get a call and more than a rap on the knuckles.

The London Organising Committee of the Olympic Games and Paralympic Games Limited (LOCOG) are responsible for organising and staging the London 2012 Games and in order to achieve this, must raise money by selling rights of association to the Games.

LOCOG must protect the integrity and value of the 2012 Games, and to prevent people undermining such rights granted to official sponsors, broadcasters, suppliers and licensees of the Games – an incredible two billion pounds of private funding has been given to the Olympics to help support the planning, staging and organisation of the Games in an official capacity.

LOCOG therefore take the view that people who attempt to seek the same benefits as these official supporters, only for free, are depriving the Games of key revenue.

LOCOG will not tolerate any representation of any kind in a manner likely to suggest to the public that there is an association between the London Olympics and a goods or service. While LOCOG has promised a balanced approach to infringement – with polite phone calls in the first instance – the courts have already been allocated significant power in this matter and LOCOG can seek damages, impose massive fines, request account of profits and impose injunctions against anything which is seen to infringe protected rights.

What are the protected rights?

The key rights granted to LOCOG arise from the following pieces of legislation; The London Olympic Games and Paralympic Games Act 2006 (the “2006 Act”), and The Olympic Symbol Etc (Protection) Act 1995 (OSPA). These protect the main symbols,

The Olympic Symbol
The words ‘Olympic(s)’, ‘Olympiad(s)’ and ‘Olympian(s).
The Olympic motto, “Citius Altius Fortius” / “Faster Higher Stronger”.
The Paralympic symbol
The words ‘Paralympic(s)’, ‘Paralympiad(s), and ‘Paralympian(s).
The Paralympic motto, “Spirit in Motion”.

and simple Trade Mark legislation also protects some of the more relevant “local” marks,

The 2012 graffiti logo
London 2012
Team GB

When determining whether an individual or company has breached the legislation, LOCOG will consider the following questions:

1. Has a “controlled representation” been used in the course of trade (this could include online promotional material including blogs and tweets)?
2. Is such a representation used in a manner likely to suggest to the public that there is an “association” between the London Olympics and the person or organisation?

What is an infringement?

An infringing association could be created in any number of ways, but LOCOG have provided some examples.

The use of 2 of the words in table A below, or the combination of 1 word from table A and 1 word from table B, may be taken into account in determining that an unauthorised association has been made.

A                                                          B
‘Games’                                              ‘Gold’ / ‘Silver’ / ‘Bronze’
‘Two thousand and Twelve’         ‘London’
‘2012’                                                 ‘medals’
‘twenty twelve’                                 ‘sponsors’

Use of these words alone does not automatically give rise to an association – e.g. a museum advertising “2012 Gold Jewels Exhibition” is not creating an association to the Games, but is a well known London jeweller doing so by its almost identical, “2012 Gold bracelet”?

LOCOG have also suggested that using any of the following may also indicate an association;

The five colours of the Olympic Symbol;
Images of Olympic venues;
Depiction of an Olympic or Paralympic Sport;
Words which capture the essence of the Games such as “spirit”, “endeavour”, “determination”, “winning”, “torch”, etc.
The use of Olympians.

And tickets?
It is not uncommon for businesses to provide tickets to sporting events: like the Six Nations, for example. A common cause of falling foul of LOCOG’s rules in this Olympic year could come in offering tickets for the 2012 Games, particularly in relation to giving these away in a prize draw or competition. Not only would this be difficult to achieve without breaching the guidelines, but there are also likely to be express clauses within the terms and conditions for purchasing the tickets that they are not to be used in this manner unless you are an official sponsor or supporter of the Games.

Our advice would be to enjoy your Jubilee tea party, but perhaps stay away from your Olympic dream!

Julian Sampson is a partner at solicitor’s firm, Wright & Wright LLP, who specialise in legal and risk advice to the specialist lending community