«Sponsorship Program Protection Strategies for Special Sport Events: Are Event Organizers Outmaneuvering Ambush Marketers? Steve McKelvey University ...»
For instance, specific legislation to deal with ambush marketing has been adopted by South Africa for the 2003 Cricket World Cup, Portugal for the 2004 UEFA Euro, Germany for the 2006 FIFA World Cup, and introduced by South Africa for the 2010 FIFA World Cup. “Increasingly, the sports authorities are pressing countries seeking to play host to international games to pass restrictive legislation enforcing bans not only on trademarked names like FIFA World Cup but also in a vague area of ‘associated’ words and symbols” (Carvajal, 2006, p. 1). The ban on associated words and symbols has typically involved specifically enumerating the banned words and phrases in the special legislation, as was done in the London 2012 legislation, discussed below. By listing the “banned” words and phrases in the legislation itself or in the legislation’s implementing guidelines, this provides some level of clarity to potential advertisers, such that in crafting a message that might otherwise imply an association with the event, the advertiser can avoid use of the words in such a way that might trigger a violation of the legislation.
This growing trend toward the enactment of special trademark legislation is the result of “global sports organizations demanding to erect towering walls around their brands and word associations when host cities come courting” (Carvajal, 2006, p.
1). However, event organizers who exert their influence to require host countries or cities to enact special legislation can find themselves at odds with advertising and marketing associations concerned over striking a fair and proper balance between freedom of expression and protection of official sponsors (Dore, 2005). While the requirement to enact special legislation in an effort to secure the hosting of a mega sport event may seem to be an excessive request, one commentator noted, “Countries are so desperate to get these events that they will sign almost anything even if it impacts their own... laws” (Carvajal, 2006, p. 1). The International Cricket Council, for example, pressured nine Caribbean islands to pass legislation which would make ambush marketing during the 2007 Cricket World Cup both a civil and criminal offense (Carvajal, 2006).
As discussed earlier, Olympic host cities in the U.S. can rely on the stronger trademark protections afforded by the Ted Stevens Olympic and Amateur Sports Act of 1988. Legislation similar to that of the United States has also been enacted by other countries to provide event organizers with a legislative means to thwart ambush marketing of events hosted in their countries. The trademark legislation of Australia and China is often cited as model legislation that can aid event organizers when pursuing acts of ambush marketing involving infringement of the event’s protected marks and symbols.
The stated purpose of Australia’s Olympic Insignia Protection Amendment Act of 2001 is, is in part, to regulate “the use for commercial purposes of certain expressions associated with the world Olympic movement” (Olympic Insignia Protection Amendment Act 2001, No. 156, 2001, ch. 3, part 3.1 (2001). Australia’s Act incorporates a “reasonable person” standard to determine if unauthorized marketing activity rises to the level of infringement under the Act (McKelvey & Grady, 2004). As mentioned above, the adoption of a “reasonable person” standard does not require some threshold number of people to assess whether the activity rises Sponsorship Program Protection Strategies to the level of violation of the legislation, a difficult standard to even imagine, but instead relies on a more workable standard which asks whether a reasonable person feels that the activity rises to the level outlined in the legislation. In addition to this trademark legislation, Australia also passed the Olympic Arrangements Act (Act No. 1, 2000) which prohibited the sale of any unauthorized merchandise within a certain radius of the Olympic competition venues, as well as placed temporary restrictions banning skywriting and flying banners in the airspace over Olympic sites (Ambush Marketing, 2003).
Similar to Australia’s legislation, China enacted the Protection of Olympic Symbols Regulations (2002), to meet its obligation to protect the Olympic intellectual property under the Host City Contract for the 2008 Olympic Games in Beijing.
The legislation affords broad protection of Olympic intellectual property (Mendel & Yijin, 2003) by protecting Olympic names and symbols, but also includes an ambush marketing clause (Vassallo et al., 2005). The legislation prohibits the use of Olympic names and logos for “implied commercial purposes” (Protection of Olympic Symbols Regulations, Art. 2, 2002). This language suggests that wouldbe ambushers cannot create a false or unauthorized association with the Olympic movement without running afoul of the regulations (Vassallo et al., 2005). The legislation appears to target ambush marketing practices by prohibiting “activities that might be deemed by others as an existing sponsorship or other supportive relationship” (Protection of Olympic Symbols Regulations, Art. 9, 2002), in effect, an external sponsorship relationship. The legislation does not make clear, however, what kind of evidence would be required to be presented before a finding that the marketing activities violated the law. This apparent gap in the legislation would make enforcement by event organizers somewhat of an ad hoc process. Despite the ambiguity in the wording of the ambush marketing provision, China’s legislation “appears to provide the most comprehensive Olympic mark protections and remedies to date” (McKelvey & Grady, 2004, p. 196).
The host country and city’s obligations to vigorously protect the Olympic marks arises from provisions set forth by the IOC in the Host City Contract. The Host City Contract is the “primary means of ensuring Olympic mark protection throughout the pre- and post- Olympic period” (Wang, 2005, p. 301). Wang (2005) noted that “as an international organization, the IOC’s intellectual property standards are its own, separate and apart from the nation that happens to host the games in any given year” (p. 300). The IOC is able to dictate necessary intellectual property protection in the respective host countries, thus allowing the IOC to achieve “a standard of international protection for its own trademark through the Host City Contract” (Wang, 2005, p. 301). For example, “the Beijing Host City Contract requires protection of two main categories of Olympic marks: the IOC’s marks and the Beijing Organizing Committee of the Olympic Games’ (BOCOG) marks” (Wang, 2005, p. 302). These marks include, for example, China’s Olympic mark logo, mascot, names, and symbols (Protection of Olympic Symbols Regulations, Decree 345), as well as the slogan “New Beijing Great Olympics” (Li, 2003). China has also sought protection for over 100 phrases including “Faster, Higher, Stronger,” “Olympiad,” and “Beijing 2008” (Hutzler, 2005). Likely motivated by historically weak protection of intellectual property in China, the IOC has strengthened international protection of the Beijing Olympic logo more than for any previous Games (Jen-Sui, 2003). The success (or failure) of Beijing’s efforts to protect Olympic 576 McKelvey and Grady intellectual property could also have a lasting financial legacy as the failure to fulfill provisions of the Beijing Host City Contract related to intellectual property protection means that “Beijing could lose certain subsidies that are contingent on enforcement results” (Wang, 2005). These promised subsidies include $118 million for sustainable development and $400 million for healthcare improvements in Beijing, among other subsidies (IOC Evaluation Report, 2001).
Similar to Beijing’s pre-event legislative efforts, the organizers of the 2012 Summer Games in London are getting an ambitious 6-year head-start in their efforts to protect against would-be Olympic ambush marketers. In 1995, London passed the Olympic Symbol Protection Act which gave the British Olympic Association (BOA) the right to control the use of the Olympic rings, phrases such as “Citius, Altius, Fortius” and words such as “Olympic,” “Olympiad,” and “Olympian.” (Olympic Symbol etc. (Protection) Act, 1995). Under the Olympic Symbol Protection Act, the “Olympic association right” would be infringed if a person in the course of trade used “a representation” of any of the words or phrases listed above or used “something so similar to the rings or motto as to be likely to create in the public mind an association with it” (Groom, n.d.). The difficulty in defining the concept of “association” and in determining what evidence is needed to establish the requisite “association” to trigger a violation is often rather ambiguous, or in some cases completely absent in cases of required evidence, in many of the legislative models that have been proposed and adopted. Determining “association” depends largely upon an assessment of the degree or extent to which consumers are confused about the nature of the relationship between the nonsponsor and the event.
This requires that the plaintiff present evidence of consumer confusion. However, as pointed out by Hoek and Gendall (2003b), typically plaintiffs seek to establish the confusion element through consumer survey evidence that is often faulty in its research methodologies including coverage, measurement and sampling, and nonresponse errors. Furthermore, the suspect manner in which courts currently assess the validity of survey evidence, coupled with the absence of a “benchmark level of confusion, accepted as providing evidence of deception,” leads to survey evidence that is highly vulnerable in court (Hoek & Gendall, 2003b, p. 117). This results in significant challenges for event organizers seeking to establish the “association” element were it to pursue a lawsuit.
The Act also contained several exemptions including “use in accordance with honest practices in individual or commercial matters....” as well as “use of any of the protected words which is not such as to ordinarily create an association with the Olympic Games movement or a quality ordinarily associated with them” (Groom, n.d.). However, Groom (n.d.) noted that there are no reported cases assisting with interpretation of these exemptions.
The Olympic Symbol Protection Act of 1995 was viewed as not stringent enough to prevent ambush marketing, however. Therefore, a new Olympic Bill was drafted by the Department for Culture, Media, and Sport “to establish the legal framework for London to stage the Games” (Fraser, 2005). London Olympics organizers insisted the new legislation was necessary to “safeguard the investment of official sponsors” of the Games (Fraser, 2005). In October 2005, Schedule 3 was proposed which established the London Olympics Association Right (LOAR). This act “give[s] LOCOG special statutory rights against advertisers who use Olympic references without permission” (Johnson, 2005, p. 1). Whereas a previous version Sponsorship Program Protection Strategies of the legislation would have “create[d] a presumption of infringement of the LOAR (in a reversal of the usual burden of proof)” (Smith, 2005) when one uses phrases from column A in connection with phrases from column B or in tandem with other phrases from column A below (see Table 1), the final version of the bill now considers use of these word combinations in the Act “guidance for the courts” in determining if the LOAR has been infringed (Johnson, 2006b).
The London Olympics Association Right states:
[T]here shall be a right, to be known as the London Olympics Association Right, which shall confer exclusive rights in relation to the use of any representation (of any kind) in a manner likely to suggest to the public that there is an association between the London Olympics and goods or services, or a person who provides goods or services. For the purpose of this Schedule the concept of an association between a person, goods or a service and the London Olympics includes, in particular any kind of contractual relationship, any kind of commercial relationship, any kind of corporate or structural connection, and the provision by a person of financial or other support for or in connection with the London Olympics. (London Olympic Games and Paralympic Games Bill, 2005) “Under the new wording, the London Olympics association right is now about representations that suggest some kind of external association (e.g., an official sponsorship relationship)” (Johnson, 2006a), an attempt to clarify the ambiguity surrounding the concept of “association” found in previous versions of the legislation. The final version of the Olympic Bill also provides a defense where a person would not infringe the LOAR by suggesting an association merely by making a statement which “(i) accords with honest practices in industrial and 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” (Johnson, 2006b). The provisions related to the LOAR are now in effect (Johnson, 2006b).
In addition, the Bill proposed the equivalent of a clean zone. The British Secretary of State has the authority to specify “no advertisement zones” surrounding the Olympic venues. The regulations specify the clean zone as “the place in respect of advertising in which the regulations apply, the nature of the advertising in respect to which the regulations apply, and what is, or is not, to be treated for the purposes of
the regulations as advertising in the vicinity of a place” (London Olympic Games and Paralympic Games Bill, H. Bill 52, 19(3), 2005). Furthermore, the bill appears to prevent billboard owners from selling the prime city signage to nonsponsors as “the regulations may impose obligations on persons who own, occupy or have responsibility for the management of land, premises, or other property.” (London Olympic Games and Paralympic Games Bill, H. Bill 52, 19(8)(c), 2005).