Just over a year from now in late July 2014 the Commonwealth Games kick off in Glasgow. In addition to being a revered sporting event attracting some of the best athletes in the world it is a highly valuable brand. The organisers and not least businesses of Glasgow will be eager to yield the fullest return possible. From the organiser’s perspective the primary source of income will be through the various channels of sponsorship. In return for vast sums of money the official sponsors will be keen to ensure that they secure a full-proof investment providing them maximum exposure to the public. These sponsors do not want to find unofficial entities associating themselves with the event without paying for the rights.
Ambush Marketing
Unofficial association commonly known as ambush or parasitic marketing is hardly a recent phenomenon. When American Express lost the rights to the 1994 Winter Olympics in Lillehammer to Visa it famously coined “If you are traveling to Norway this winter you’ll need a passport, – you don’t need a visa”. Other common forms include the practice of giving away a plethora of useless gimmicks in the hope that members of the public will secure some inadvertent marketing. Whilst the average member of the public is happy to get something for free official sponsors are generally less than pleased to see their competitors name plastered all over the T.V. screen on hats, shirts and flags (the useless gimmicks). This sort of parasitic marketing can deter potential investment and directly impact on the success of the games. Thus, the Organising Committee (the “OC”) is tasked with attempting to procure the most favourable and attractive advertising conditions possible.
The Organising Committee’s Response
With this in mind the OC have lobbied and gained new legal protections as part of a comprehensive brand protection strategy. With regards to ambush marketing the Scottish Government have proposed the draft Glasgow Commonwealth Games (Trading and Advertising) (Scotland) Regulations. The Trading and Advertising Regulations were unveiled on the 15th May 2013 and are currently under a consultation period that is due to end on the 7th August 2013. Together with these regulations the Glasgow Commonwealth Games Act 2008 and the Commonwealth Games Act 2008 (Games Association Right) Order 2009 form the basis for protecting the valuable brand.
The Draft Trading and Advertising Regulations
The draft Trading and Advertising Regulations have been formulated with great latitude. The Scottish Government intends to bestow on the OC wide powers to prevent any form of ambush marketing. The aim of the legislation is to prevent unauthorised advertising activity in certain locations. The vicinities of these games locations are detailed and delimited on maps attached to the draft Regulations. The Consultation states that the Regulations are to apply to “all types of advertising activity.” Specifically highlighted are: announcements or notices, giving away of any goods or services, the distribution or provision of documents or articles, the display or projections of words, images, lights or sounds.
Regulation 12 of the draft Trading and Advertising Regulations creates the “advertising offence”. It is an offence for a person to arrange for a communication to be made to the public for the purpose of promoting an item or service if that communication occurs within the vicinity of one of the games locations. For instance, if an unauthorised company hands out free gimmicks – hats, shirts or flags – to members of the public and those members of the public enter one of the established vicinities then a communication occurs and an offence is committed. There is no defence open to an unauthorised entity to claim that they did not know that those individuals would then enter one of the designated vicinities. The Regulation focuses on whether a communication has occurred in one of the games locations. If it has then the OC will seek to find the person who “arranges” for the activity to occur. Importantly under Regulation 12(5) the board of directors can be held liable for the actions of the company in attempting to circumvent the legislation. The OC has the power to bring civil claims allowing the award injunctions, delivery up of infringing good and damages.
The Games Association Right Order
The other major piece of legislation to combat ambush marketing is the 2009 Games Association Right Order. It provides enhanced protection for brand owners to prevent unofficial companies jumping on the bandwagon of the Commonwealth Games. The Regulations are infringed by any representation in the course of business that is “likely to suggest to the public that there is an association” with the games. Both the Associations Rights Guidance and the Suppliers Guidance make clear that the legislation is intended to have a broad application. For instance, amongst others, the terms “Games”, “2014”, “Glasgow”, “Medals”, “Gold”, “Silver” and “Bronze” used in conjunction with any of each other are likely to give rise to an “association”. The definition of “association” is wide and there is no hard-and-fast rule. It must, however, be remembered that the OC have been granted a wide discretion. They are also keen to ensure that the interests of the sponsors, who have invested large amounts of capital, are fully protected.
Businesses Beware
Smaller stakeholders need to be aware that they will have to use non-specific language if they want to attempt to cash in on the Commonwealth Games. The rules could present real problems for SMEs in Scotland. An unauthorised advert in a shop window or pub billboard reading “Supporting the Glasgow Games” or “Exclusively showing all the Commonwealth events at X bar” could be actionable at the will of the OC. Even if no restricted words are used it simply has to be likely to suggest to the public that there is an “association”. Before engaging in marketing businesses of all sizes should seek advice on the commercial law aspects of advertising for the Commonwealth Games.
The rules secure a high level of protection and the Organising Committee has been granted a wide discretion. As past evidence has shown when it comes to protecting the interests of the precious sponsors Organising Committees have surprisingly deep pockets and are happy to litigate. The legislation makes it quite clear that the Organising Committee is not willing to play ball with potential ambush marketers. Unauthorised companies or individuals falling foul of the rules need to be aware of the serious consequences of an infringement. In other words ambush marketers beware no ball games allowed.
Image courtesy of NeilGHamilton on Flickr
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