Advertising and social media featuring the Games
London 2012 will be the biggest social media sports event in history. There are enormous opportunities for the London Organising Committee of the Olympic Games (LOCOG) and its official partners to engage with sports fans online but there are equivalent opportunities for ambush marketers to engage with those fans. How LOCOG seeks to control social media, using the UK legislation at its disposal, will be fascinating to observe.
Traders and advertisers are likely to target visitors to London and spectators and, more generally, may want to tap into the world's interest in the Olympics and Paralympics. Of course, the IOC and LOCOG take a dim view of this kind of "ambush marketing" activity, which LOCOG defines as being "a business’s attempts to attach itself to a major sports event without paying sponsorship fees". The IOC and LOCOG generate huge amounts of revenue from sponsors paying to be exclusively associated with the games, so they must protect that exclusivity and take action against ambush marketing. LOCOG has said it “will do everything to ensure it is stopped”.
The tools available to LOCOG in the UK include:
- The Olympics association right: it is prohibited to use in the course of trade the word Olympics (or any variations e.g. Olympian; Olympiad etc or the Paralympic equivalents); the Olympic rings; or the Olympic mottos unless a defence applies. For example, it is a defence that the use "is not likely to suggest an association" between the business and the Olympics.
- The London Olympics association right: this prohibits the making of representations without authorisation that are likely to suggest to the public that there is an association with the games. Use of the following terms could be used as the basis to presume an intention to create a prohibited association:
- Any two of: Games; Two Thousand and Twelve; 2012; Twenty-Twelve (Group A)
- Any word in Group A plus one or more of: London, medals, sponsors, summer and gold/silver/bronze.
- Advertising in and around the 25 Olympic event zones is prohibited.
- Trade marks: There is extensive registered trade mark protection for marks such as the Olympic games symbol, TEAM GB and the London 2012 logos.
- Copyright and design right infringement: LOCOG owns the copyright in a range of images, artwork, graphics and films etc created in connection with the games (e.g. the Wenlock and Mandeville characters and the official logos of the games). These materials should not be used without permission.
Remedies for infringing these rights include damages, injunctions and accounts of profits. Quantifying loss and profits derived from unauthorised associations, for example, may be difficult. Injunctions (particularly interim injunctions) to prevent or take down infringing advertising may therefore be the key remedy sought by LOCOG. Criminal offences can also be committed, for example where Olympic symbols have been applied to goods.
The scope of the concept of "association" is key to what can and cannot be done by businesses who are not official partners. The legislation defines the meaning of association broadly, as including: (i) any kind of contractual or commercial relationship or corporate or structural connection, (ii) and the provision by a person of financial or other support for or in connection with the London Olympics. This is much wider than traditional trade mark law concepts.
Advertisers will not, however, be suggesting an association only by making a statement which both (i) accords with honest practices in industrial or commercial matters; and (ii) does not make promotional or other commercial use of a representation relating to the London Olympics by incorporating it in a context to which the London Olympics are substantively irrelevant.
As a general rule, LOCOG's guidance is "that you should not use the Olympic or Paralympic Games as a marketing tool unless you are an official sponsor". LOCOG has suggested that the context and content of the representations can both contribute to the creation of an association. However, the more indirect, allusive and inferential the reference to the games is, the less likely it will create an actionable association. LOCOG, nonetheless, implores businesses to act "fairly in relation to the legitimate interests" of LOCOG and its "interest in offering exclusive associations." The advertiser should not be taking "unfair advantage" of the value of the games and associated representations. So, the statutory definition and LOCOG's view of "association" are potentially very wide and the carve out is very narrow. In practice, however, LOCOG is likely to be more concerned with key businesses and competitors of the official sponsors than with local and ephemeral infringements.
However, the appetite for businesses to want to refer to the games through their social media presences is obvious: the world will be talking about them and businesses will want to join in the conversations. Those in charge of social media presences must exercise caution: even something as seemingly anodyne as a tweet from a corporate account saying "Drink 'X' while you are watching the London games" or "Come for a workout at 'Y' if you were inspired by last night's gold action at the games" are, according to the LOCOG guidance, at risk of infringing the association right. Advertisers will also have to be very careful if they attempt to engage with consumers through their Olympics experiences.
The spontaneity of social media means mistakes can easily be made and, once something has gone viral, it can be difficult to rein in. It is also difficult to make it clear that there is actually no association. There is little room in a tweet, for example, to prevent an association in the context of a big event. Of course, on the other hand, if problems do arise, they can be relatively easily reversed if acted on quickly. But it is generally better to avoid them happening in the first place. As LOCOG put it, "If someone is using the worldwide web to unfairly exploit the Games, LOCOG will take appropriate action."
Although there are prohibitions on advertising in and around the event zones, location based mobile advertising seems to be carved out. So, displaying advertising on a mobile phone in a venue is not prohibited unless the advertiser intends to display the advert to the public at large. Mobile adverts could even be tailored to be location specific if the devices are enabled to share location information. Of course, such adverts still have to comply with the general advertising restrictions. Offering, for example, a 10% discount at a hotel for London 2012 ticket holders or special discounts if a user's tags show they have visited a number of Olympic venues is likely to be problematic.
LOCOG's message is to be careful: commercial references to the Olympics are, in principle, unlawful and the onus, according to LOCOG, will be on the advertisers who make these references to justify how their advertising does not infringe LOCOG's rights. The same is true in social media as well; advertisers should be careful when they engage with or instigate conversations about the Olympics.
"Adam Rendle considers how the restrictions on advertising featuring the Olympics might work in social media."
"The scope of the concept of "association" is key to what can and cannot be done by businesses who are not official partners."