Sponsors of major sporting events usually consider ‘ambush marketing’ to be one of the world’s greatest evils. Ambush marketing is a term that refers to a marketing strategy of trying to create the impression of a brand being associated with a sporting event when it’s not. Famously, Nike refused to pay the rumoured $50m (£27.2m) price tag to be the official sponsor of the 1996 Olympics, and instead hiring many of the billboards near to the various stadia and handing out banners that displayed its logo to spectators going to various events. The official sponsor was furious at the TV coverage obtained by Nike.
In order to prevent ambush marketing, it now seems common practice for sponsors to oblige the event organisers to place extraordinary restrictions on the management of the event. For example, spectators wearing a shirt that displays the logo of a company not sponsoring the event can be refused entry. During a recent football World Cup game in Germany, some Dutch supporters wearing orange trousers displaying the logo of a beer company that was not an official sponsor were refused entry. The plucky Dutch, having purchased expensive tickets and keen to see their team play, took off their clothes and attended the game in their underwear. Notably, at the next Holland game, the same Dutch brewer also gave out orange boxer shorts. These too displayed the brewer’s logo. In a stadium of at least 50,000 spectators, many of whom were wearing orange, one wonders who would even notice the offending logo. Even if some people did, it is difficult to see what damage the official sponsor suffers.
Such occurrences are now regrettably common at major sporting events. Last year spectators had to throw away a brand of bottled water upon entering the gates of Wimbledon because that brand was not an official sponsor.
Not only are such requirements appearing in the sponsorship agreements for London 2012, legislation has been passed in the UK ensuring that the official sponsors are amply protected. The protection granted under this legislation goes far beyond the protection that brand owners are entitled to normally. A new right has been created called the ‘London Olympic Association Right’, which is infringed by any representation that creates a likelihood of association with the London Olympics. There are a few defences, but these do not provide any balance to this legislation. In addition, the established ‘Olympic Association Right’ has been widened to also include any use that creates a likelihood of association. It, too, has similar narrow defences. Just about any reference to the Olympic Games in London will create such a likelihood of association. After all, that is the purpose of making the reference in the first place. Pretty much any business that uses a combination of ‘2012’, ‘Olympics’, ‘London’, ‘summer’ or ‘Games’ in any promotional material will be infringing.
Surely the touchstone should be whether there is any confusion in the mind of the public that the business has endorsed, or is somehow connected with, the Olympics. If that touchstone, which applies to all other brands and in all other circumstances, is good enough at other times, why is it not so for the sponsors of the London Olympics? The London Organising Committee for the Olympic Games (Locog), which has the job of enforcing the rights, has said that it will apply its rights with common sense. Locog, however, obtains 95 per cent of its revenue from merchandising and sponsorship – ie from enforcing its rights.
The legislation creates a right that extends far beyond preventing ambush marketing. It prevents all businesses from even referring to the London Games. In an example published by Locog as a guide to businesses, it states that, in Locog’s view, a pub putting a chalkboard outside stating ‘Watch the 2012 Games here’ will be infringing the laws if the name of the pub is also on the board. Bizarrely, the same board without the name of the pub will not be objected to.
This law goes too far and its enforcement should not be left to the discretion of the organisation that benefits from its enforcement. Furthermore, the weather in London is unpredictable, and spectators will probably be reluctant to strip off in the Dutch fashion to attend – with perhaps beach volleyball being the exception.