Ambush Marketing: "The Cool Sporting Event" Happening Between 2011 And 2013 In A Thameside City
Published 31 August 2011 By: Jon Walters
Fans of Eamonn Holmes, Christine Hamilton and Michael Parkinson will have been perturbed to read that the ‘Great Exhibition 2012’, a cultural and social event taking place in London next year supported by them, has reportedly received an objection from the London Organising Committee of the Olympic Games (‘LOCOG’) to its attempt to register its name as a trade mark.
In a similar vein, it has been reported that the Honda ‘Power of Dreams’ ad campaign (featured below) is the subject of an investigation by LOCOG for infringing its exclusive rights to refer to the Olympics. The campaign, featuring Ed Clancy (track cyclist), Goldie Sayers (javelin), Beth Tweddle (gymnastics) and Jazmin Carlin (swimming), tracks the journey of these Hondaendorsed athletes towards their dreams. It is a similar campaign to those recently launched by a number of other brands, such as BP (an official partner of the Games).
So what is going on here and what is LOCOG objecting to? As a bidding city requirement for the Olympics, London had to promise to implement effective anti-ambush marketing legislation to protect the commercial value of the Games and the rights of official partners. Parliament duly obliged, implementing the London Olympic Games and Paralympic Games Act in 2006 which, amongst its provisions, conferred the exclusive right on LOCOG to create an association with the London 2012 Games. This right is infringed if anyone, without authorisation, uses words or images which create a concept of association between them and London 2012.
Amongst words which carry particular weight are ‘games’, ‘2012’, ‘gold’, ‘silver’, ‘bronze’, ‘London’ and ‘summer’ (which explains our less than cryptic title for this piece, shamelessly stealing from a t-shirt slogan used by the sportswear brand, Lululemon, during the Vancouver Winter Olympics to avoid similar laws).
It is on the grounds of an infringement of this right that we believe LOCOG is alleged to have opened an investigation against Honda. That is to say, that LOCOG considers that there may be grounds to determine that Honda’s campaign creates a concept of association between the brand and London 2012. Looking at the ad pictured, one might suggest that (i) the use of Ed Clancy in national team gear, (ii) the Union Jack colour scheme and imagery and (iii) the repeated references to gold, silver and the Olympics mean that the implicit message which the ad is trying to convey is that we should support Ed Clancy on his journey to London 2012 (supported by Honda). In its broadest sense, it is therefore arguable that the campaign associates Honda’s brand with the Games.
However, does the advert itself lead you to mistake Honda for a sponsor of the Olympics? We would suggest that the public are sophisticated enough to understand the distinction between a brand supporting an athlete (who happens to be competing in the Games) and a brand supporting the Games itself. Not least, we are all familiar with the iconic London 2012logo which features on official sponsors’ adverts and which does not appear anywhere in the Honda advert.
It is here that the problem lies. Endorsement of an athlete at a time of heightened interest in London 2012 must unavoidably conjure up images of the Games in viewers’ minds and, as such, create an unauthorised concept of association in potential breach of the Act. Yet read the explanatory notes to the Act and Parliament’s statement as to its purpose, and there is no reference to seeking to prohibit athlete endorsements. With athletes struggling for funding in the build-up to the Olympics, the intention cannot, of course, have been to restrict their ability to pay their way by entering into sponsorship deals.
Nonetheless, the Act as drafted creates a wide right which is of potential impact on many brands’ marketing campaigns, whether or not they view themselves as ambush marketers. It is a minefield as a lawyer to navigate and advise on as, in the absence of a test case, we do not know how the courts will interpret and enforce the prohibitions and we are left to seek guidance from LOCOG’s restrictive interpretation in its guidance. In this atmosphere of uncertainty, what should companies do to protect themselves? Our advice to clients has been as follows:
- Even if you do not view your company as an ambush marketer, consider whether your campaigns feature athletes, references to London or otherwise seek to capitalise on interest in Britain as a result of the Games;
- If the answer to the above is yes, familiarise yourself with the provisions of the Act, including LOCOG’s guidance available on its website;
- Set up an approval procedure (engaging your legal team where appropriate) for campaigns and new product launches, ranking the proposals on a scale of risk; l Establish a list of key do’s and don’ts;
- These do’s and don’ts would include using the terms noted above (‘London’, ‘Gold’, ‘2012’ etc) without clear justification and using Olympics related imagery and wording;
- Where you are using an athlete in a campaign, take particular care. Consider whether it is appropriate to feature the athlete in national team gear and with reference to his/her preparations for the Olympics or whether he/she can be used in a different, everyday context;
- If your campaign features an athlete and will run during the Games, also seek clearance from LOCOG (or the relevant national Olympic committee of the country where the campaign is being run) in advance as there is potential infringement of the Olympic Charter, Rule 41 which prevents athletes participating in the Games from featuring in advertising campaigns during the Games.
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Jon provides commercial and corporate advice to clients. He is recognised by the directories as a “real go-to adviser” and a “commercial and regulatory expert”, with particular expertise on governance, corporate advice and commercial rights.