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In May 2013, FIFA published the latest issue of its public guidelines on the use of its official marks and association by non-sponsor brands with World Cup 2014.
Reviewing these guidelines, the approach taken by FIFA is strikingly similar to that adopted by the London Organising Committee of the Olympic Games (LOCOG) in relation to the London 2012 Olympic Games, both in terms of its interpretation of what constitutes an unauthorised association and the forms of marketing media it is concerned with regulating.
This should be no surprise, given the similarity of the legal tools available to FIFA and LOCOG and the development of common processes and procedures by major event rights holders to the threat of ambush marketing.
In both cases, traditional trade mark actions have been supplemented by event specific ambush marketing legislation (the World Cup General Law in the case of World Cup 2014) and, as attentions turn to Brazil with the recent hosting of the Confederations Cup (at which FIFA road tested its anti-ambush policies), it is an opportune moment to reflect on London 2012’s partner protection programme, which we would expect to provide a blueprint for FIFA’s programme next year.
London was required by the International Olympic Committee (IOC) in its host city contract to guarantee the implementation of effective anti ambush marketing legislation.
This meant not simply relying on the ability to take action for the misuse of key Olympic symbols and terminology under trade mark laws and existing legislation (the Olympic Symbol etc (Protection) Act 1996), but the adoption of a new kind of law directed at marketing activity which did not use protected symbols or terms, but which nonetheless created an impression of association with the Games. This was achieved through the ‘London Olympic Association Right’ (LOAR) set out in the London Olympic Games and Paralympic Games Act 2006.
The level of concern with LOAR was understandable, given its wording and the pronouncements of the IOC on what it considered to be ambush marketing. LOAR was infringed by a person using a representation (in relation to it its business) in a way that was likely to suggest to the public that there was an association between London 2012 and that person or its goods/ services.
With particular emphasis placed on representations such as ‘London’, ‘2012’, ‘gold’, ‘silver’, ‘bronze’ and ‘summer’ and the scope of an ‘association’ undefined, there was dangerous vagueness in the wording of the legislation, which could have been abused by over-zealous enforcement.
Paranoia on this front was heightened by the breadth of the IOC’s stated definition of ambush marketing: ‘a planned attempt by a third party to associate itself directly or indirectly with the Olympic Games to gain the recognition and benefits associated with being an Olympic partner’.
In the build-up to the Games, the UK press raised these fears to fever pitch, coupling the theme of the ‘Corporate Games’ with the risks of restraining the freedom of expression of small business.
Reflecting on marketing during London 2012, it is clear that the paranoia was not realised to the extent feared. However, two important lessons did emerge: first, that the legislation almost certainly had a chilling effect on the most blatant campaigns, particularly on the ground marketing stunts; and secondly, that anti ambush protections - however wide - have limitations and can be bypassed by the smartest and best structured advertising.
The chilling effect was demonstrated by the relative absence of so-called ambush campaigns. The Games were disappointingly bereft of fans being required to remove branded lederhosen and orange mini-dress clad cheerleaders attracting police attention (both notorious Bavaria beer stunts at football World Cups).
Above the line campaigns focussed on the use of Olympians and generic messages of sport, lifestyle and health, rather than attempting to link or associate with the Games directly. No litigation on LOAR reached the courts and the reported stories of those who did face enforcement action highlighted only examples of obvious ignorance of the laws (eg the Weymouth butcher who created an Olympic ring symbol made up of sausages) or ill-informed enforcement teams (eg the removal of Walkers crisps and Ginsters pasties from police attending events).
In the cases of Oddbins and Paddy Power, adverts poking fun at the anti-ambush legislation demonstrated the effectiveness of tongue-in-cheek campaigns at bypassing the laws. While LOAR prevented making a positive association with London 2012, it appears that a negative association with the event (ie alluding to the Games openly but in a way that leaves no doubt in the mind of the reader that you are not an official sponsor) does not infringe.
It will be interesting to monitor how this is played out in relation to World Cup 2014 and whether FIFA and the Brazilian authorities consider themselves similarly hamstrung.
There are obvious similarities between the messages of the campaigns.
Oddbins ran the tagline, ‘We can't mention the event, we can't mention the city, we can't even mention the year... At least they can't stop us from telling you about the Rococo Rosé’ and offered a £30 discount to any customer who wore Nike shoes, carried Vauxhall car keys, an RBS MasterCard, an iPhone, a bill from British Gas and a receipt for a Pepsi bought at KFC (all rivals to official Olympic partners).
Paddy Power erected posters around London boasting: ‘Official sponsor of the largest athletics event in London this year! There you go, we said it. (Ahem, London, France that is).’ In response, LOCOG instructed JC Decaux, who owned/operated the majority of the poster sites, to remove the posters for allegedly breaching the legislation.
Confident that it was abundantly clear to readers that Paddy Power was mocking the protections afforded to official sponsors and was not portraying itself as a London 2012 partner, Paddy Power went on the offensive and threatened legal action against LOCOG for its misinterpretation. At the 11th hour, LOCOG conceded that the campaign could continue. The firm advised Paddy Power throughout this process.
This was as close as it came to litigation over the anti ambush marketing legislation during London 2012.
The highlight of product placement during the Olympics was undeniably the handing out of Beats ‘Dr Dre’ headphones to athletes. Laura Robson and Tom Daley were pictured in them and they were a near ubiquitous sight in the Aquatics centre. The legality of this campaign was less clear-cut.
While the Olympic Charter permits the identification of manufacturers of equipment subject to certain sizing and placement requirements to appear on equipment, broader rules of the Olympic Charter and many countries’ national team participation agreements prohibited athletes from allowing themselves to be used for marketing purposes.
That no action was taken had perhaps less to do with the exploitation of a clever legal loophole, than with the IOC’s and LOCOG’s surprisingly sympathetic approach to enforcement, no doubt cognisant of the risks of bad PR and maximising the publicity of the Beats products.
As much was made clear in a LOCOG’s spokesman’s statement at the time: 'Our approach to enforcing the 2006 Act has always been sensible, pragmatic and proportionate. We have to protect the rights of our sponsors, who have paid for exclusive associations with the Games in their sponsorship categories. We are tough on commercial abuse, but we don't want to do anything to dampen genuine enthusiasm and excitement about the Games.'
It is this message of sympathetic enforcement which seems likely to leave the most lasting legacy. Many rights holders, FIFA foremost amongst them, have been stung by the increased publicity (usually negative for the rights holder, positive for the brand) resulting from enforcement action. While rights holders need a stick to threaten with, judicial use of it would seem to be the key to effective management of ambush marketing.
The trend for continuity of personnel in major sports events is likely to support this consistency. Many of those involved at London 2012 have moved on to work for the Rio Games or the Rugby World Cup 2015. Take, for example, Debbie Jevans, Director of Sport for LOCOG and now Chief Executive of England Rugby World Cup 2015.
The approach of sympathetic enforcement appears to be increasingly coupled with wider and stricter legal protections for sponsors. It appears that legislative protection will not only be available to sporting behemoths, such as FIFA and the IOC.
In the UK, the introduction of the Glasgow Commonwealth Games Act 2008 for the forthcoming Games is illustrative of government-level acceptance of the need for legislation to protect major sporting events. The upcoming Rugby World Cup does not enjoy such protection and will have to rely on more traditional means of tackling rogue marketers, but future events may and there is a body of thought that encourages the adoption of a universal anti-ambush marketing law in the UK.
It is to be hoped that the positive lessons learned from London 2012 will be applied to any future laws, whether in the UK or abroad. Listing out certain terms which carry particular weight (eg ‘London’, ‘2012’ etc) is not helpful, as it simply confuses the issue and scares those running legitimate campaigns which incidentally use those words. Trade mark law is much better suited to protecting key terminology/symbols.
Above all, a better and tighter definition of the meaning of an ‘unauthorised association’ is required in legislation. Associations with an event occur innocently on many occasions, for example through the use of athletes competing in that event in a personal capacity.
Legislation needs to be clear that it is only direct associations suggesting endorsement of an event which infringe, and also recognise that negative associations (such as Paddy Power and Oddbins) do not.
First published in World Sports Law Report - August 2013