Stuart Helmer CMS Cameron McKenna

Transcription

1 AMBUSH MARKETING 17 March 2011 Stuart Helmer CMS Cameron McKenna +44 (0) /28/2011

2 Topics to cover Background What is ambush marketing? Why do it? Why try to stop it? Examples Preventing ambush marketing IP rights Contractual protection Event-specific rights London Olympics Royal Wedding Marketing without ambushing Concerns about ambush marketing and enforcement

3 It s all about the money Costs of staging major sporting events London Olympics budget - 9.3bn LOCOG to raise 2bn from private sector 2010 World Cup estimated to have cost $4bn Importance of sponsorship $100m for top Olympic sponsorship $25-44m annual fee for Worldwide Partners at the World Cup Non-sponsors want to be associated with the event Organisers need to protect sponsors investments

4 What is it? International Olympic Committee definition: 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 LOCOG definition: a business attempts to attach itself to a major sports event without paying sponsorship fees. Guerilla / parasitic marketing? Words mean what I want them to mean

5 Ambush marketing by intrusion

6 Ambush marketing by association

7 Political agendas: Vancouver Winter Olympics

8 Political agendas: Vancouver Winter Olympics

9 Not just sporting events

10 Registered trade marks Rights holder registers the marks itself for licensing Validity? EURO 2000 / GERMANY 2006; contrast eg SOUTH AFRICA 2010 Trade mark use? Trebor v FA Arsenal v Reed Disclaimers? See also Paris Convention Article 6bis for well known marks Ultimately - only helpful where identical / similar mark used

11 Passing Off Claimant must show: significant reputation or goodwill; and defendant created a false message which would be understood as an endorsement, recommendation or approval No need for a common field of activity Irvine v Talk Sport Actual confusion?

12 ASA Complaint? RFU complaint: ad implied that Fuller's was an official sponsor of the England team General statement about the game of rugby Did not imply a reference to the England team Features that official sponsors were likely to include in their advertising were not included Support English Rugby not misleading - Fuller s had supported English rugby for years Readers unlikely to be misled into thinking Fullers were an official sponsor or partner of the English rugby team

13 Contractual protections Agreements with athletes Restrictions on promoting non-sponsor products Restrictions on what they can wear, use, carry Agreements with spectators (ie ticket conditions) No promotional activity ie promotional clothing, gifts No non-sponsor products - reserve right to confiscate / eject No recording equipment Control resale / use (ie competitions) but note incorporation issues Agreements with media owners Restrict broadcasters from accepting competitor sponsorship First refusal of advertising space - near venues / around TV coverage

14 The London Olympics

15 The Protected Marks

16 Additional Protection: London Olympics Statutory protection for the Olympics in English law: Olympic Symbol (Protection) Act 1995 London Olympic Games and Paralympics Act 2006 Plus secondary legislation made under them The rights created: Olympic Association Right (created: 1995 Act, amended: 2006 Act) Paralympic Association Right (created: 2006 Act) London Olympics Association Right (created: 2006 Act)

17 Additional Protection: London Olympics Exclusive right to be associated with the Olympics, Paralympics, or London Games Reserved to official sponsors of the Olympic movement and the London Games Association : any kind of contractual or commercial relationship, or corporate or structural connection, between a person, product or service and the games or the Olympic movement

18 Additional Protection: London Olympics Infringement of the OAR/PAR: use, without consent, in the course of trade, of "controlled representations unless the user can show that the use was not likely to create an association with the Games or that another defence applies presumption of infringement - burden of proof on the user Controlled representations: Olympic, Olympian, Olympiad Paralympic, Paralympian, Paralympiad Citius, Altius, Fortius Spirit in Motion and anything similar that is likely to cause an association

19 Additional Protection: London Olympics Infringement of the LOAR: Use, without consent, in the course of trade, and in relation to goods and services, of any representation likely to suggest to the public that there is an association between the Games and goods or services or a person providing them Burden of proof on LOCOG Listed expressions will be taken into account but their use is not conclusive of infringement Listed expressions: List A: Games, Two Thousand and Twelve, 2012, Twenty-Twelve List B: London, medals, sponsors, summer, gold, silver, bronze Association: 2xA or A+B

20 LOCOG guidance: LOCOG considers that the following may create an association: Depiction of Olympic venues Use of five Olympic colours Use of Olympic style torch/flame Use of words associated with Olympic qualities (spirit, endeavour, friendship, winning, determination) Depiction of Olympic sports (particularly several at once) Use of XXX or 30th Other factors LOCOG say may be relevant: Past conduct. The nature of the product. Additional Protection: London Olympics The timing of the advertisement (particularly publication or broadcast before or during the Olympics).

21 Additional Protection: London Olympics Infringement of the LOAR LOCOG guidance:

22 Additional Protection: London Olympics Infringement of the OAR/PAR/LOAR Defences Honestly made statement Journalism / information Incidental use Continuous use Use of registered or prior rights Context not likely to suggest association (OAR/PAR only) Own name, indication of characteristics / intended purposes of goods or services in a/c with honest practices (LOAR only)

23 London Olympics: Draft Advertising and Street Trading Regulations Prohibit advertising and street trading in and around London 2012 venues, subject to exceptions Very broad definition of advertising (including non-commercial) Short duration Applies to public and private land; owners of land obliged to ensure there is no unauthorised advertising Exceptions: Political / charitable causes etc For clothing where wearer does not know they are participating in ambush marketing Ads on enclosed land, on vehicles, on/inside buildings etc Newsvendors, ice cream vans etc Immediately enforceable by police / Trading Standards Breach may be a criminal offence with fines of up to 20,000 Defence where acts done without knowledge or despite taking reasonable steps to prevent acts continuing

24 The Royal Wedding

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27 Restrictions on references to royalty Trade Marks Act Prohibits misleading use of Royal arms or other signs See Lord Chamberlain s guidance Trade Descriptions Act Prohibits false indications of royal endorsement CAP Code Images of / references to royal family, royal arms or emblems should not be used without permission

28 Relaxation for souvenirs Exception for photos of the couple / William s coat of arms Must be of a permanent kind Explicit commemorative wording In good taste Free from advertising No implication of royal custom or approval No tea towels?

29 What have non-sponsors done? Associate with players, not teams Use public domain imagery Associate with the sport, not the event Retired players, heritage events Plan ahead Parody other ads

30 Concerns over ambush marketing Adverse publicity For non-sponsors ambush marketing as theft / parasitism For sponsors/promoters heavyhanded enforcement? Creep of association rights Real benefits to host nations and businesses?

31 AMBUSH MARKETING 17 March 2011 Stuart Helmer CMS Cameron McKenna +44 (0) /28/2011