OLYMPIC LEGISLATION
is an association between London 2012 and goods or services, or providers of goods or services.”
Essentially, the association right would be infringed if a commercial entity used a representation that suggests to the public that it—or its goods and services—are associated with London 2012. “Tis is very broad as a concept,” says Smith. “If I advertised my healthy biscuit brand by having a picture of some people running on an athletics track and I put that out at the time of London 2012, it could be sufficient to amount to an association on the pure meaning of the words—certainly if I added a reference to ‘medal winning taste’. Whether LOCOG would then actually attempt to enforce becomes the critical question.”
Ambush marketers who are looking to associate themselves or their brands unofficially with London 2012 must be aware of an association right and tread carefully.
Chris McLeod, a partner and the director of trademarks at Squire Sanders in London, says: “The specific legislation has made it difficult to do anything on an extensive scale that cannot be shut down fairly quickly.”
Smith agrees: “I would advocate a high degree of caution. Tis legislation is tough to get around.”
McLeod thinks that LOCOG is hoping the legislation will have a deterrent affect so that it doesn’t have to spend its finite resources tackling ambush marketing during the games. “It will be interesting to see how far people will go and what will be permitted,” he explains. “It will also be interesting to see what will be tolerated and what won’t be, and how strictly LOCOG is going to enforce the legislation against ambush marketers.”
Another deterrent could be taking an ambusher marketer to court under the 2006 act. “LOCOG could take a case to court before the Games to act as a deterrent, although they wouldn’t want it be a borderline one,” says Smith.
McLeod adds: “Tey could choose to make an example, but that could attract adverse publicity, and there is a chance that it would overshadow the event. It would be possible to get an injunction and damages, so you could get an exemplary judgement from the courts, but that would also divert funds and resources.”
Running on empty
Te association right provision of the London Olympic Games and Paralympic Games Act 2006 was discussed with the IOC, which oversees Olympic sports worldwide, during negotiations over London’s bid to host the 2012 games. Te UK government ultimately enacted
this provision in the 2006 act. Some sports organisations insist on this type of legislation when countries are bidding to host an event.
Countries have to submit draſt legislation for combating ambush marketing when bidding to host UEFA’s European Football Championship. A UEFA document outlining the requirements for bidding to host the 2016 championship says: “UEFA requires a draſt of specific legislation ... that prohibits the direct or indirect use, by any means, without UEFA’s authorisation, of any name, designation, brand, insignia, logo, design and/or intellectual property, which suggests or creates the impression that it is authorised by, or that it is in any way commercially associated with, UEFA or UEFA Euro 2016.”
But a bid will not be dismissed if a country fails to legislate as UEFA would like it to. Czyżewski says that UEFA negotiated certain IP protection guarantees. “However, no such act has been enacted in Poland. What is more, even a draſt of the bill which had been prepared was not publicly discussed.”
He adds: “Special legislation for a specific event would be an extraordinary regulation in Poland. Taking into account the heavy public protests in Poland against ACTA (the Anti-Counterfeiting Trade Agreement), any regulations that could be unjustifiably favourable for UEFA or the official sponsors would also be widely criticised. Terefore, granting wide monopolies to the event for organisers and sponsors could even have adversely affected the perception of football fans, and the goodwill of the official sponsors themselves.”
Instead, UEFA is primarily using existing national laws to protect the Euro 2012 brand in Poland. It has UEFA, Euro 2012 and Poland/Ukraine 2012, including their local equivalents, as trademarks.
However, this may put UEFA and the Euro 2012 sponsors in a disadvantaged position in Poland. Czyżewski says that UEFA must rely on the
16 World Intellectual Property Review May/June 2012
Industrial Property Law and the Combating Unfair Competition Act to protect the Euro 2012 brand. Problems would arise when trying to prove that aspects of these laws have been broken in court.
“Ambush marketing usually does not result in creating a risk of confusion, as it is understood generally,” he explains. “Both trademark and combating unfair competition laws require that there be a risk of confusion before an act can be deemed to be illegal.”
On top of that, Polish procedural law is “not a good companion” in the fight against ambush marketers, says Czyżewski. “Action would need to be quick to stop the practices. Polish courts however usually act rather slowly, even in granting interim injunctions— which could take at least two or three weeks, and which could then be appealed, which would mean a further several weeks. Main proceedings are long— usually one to two years at first instance.
“Because there is no specific regulation available, the action of the police for ambush marketing will be rather limited.”
It is important that the position of official sponsors of Euro 2012 is strengthened in Poland using information and advertising campaigns, says Czyżewski. Te Polish Ministry of Sport and Tourism established a company, PL.2012, to coordinate organisation of Euro 2012, and a special section of it was formed to coordinate IP enforcement. “Te section actively informs of the law on use of IP rights, and cooperates with police and customs offices which can act against counterfeit products,” he explains.
With the summer of 2012 rapidly approaching, interest in these events is definitely increasing. What is unclear is how ambush marketers will be identified and how they will be dealt with during these events. Tis will be a hot topic of conversation among IP professionals, brands and consumers throughout these events and for a long time aſterwards. n
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