Guilt by association

The Olympic Games will take place in London in the summer of 2012. This innocuous factual statement contains four words (italicized) that are on a list of words that raise a presumption of ambush marketing under the London Olympic Games and Paralympic Games Act.1 In its guidelines for non-commercial2 entities who might happen to reference the Games, the London Olympic Games Organising Committee (LOGOC) warns that magazine or web-posted articles about the games are “normally permitted”, but that “a book, magazine or website focusing on the Games or London 2012 will need approval”. Factual statements about the Games are “acceptable” as long as they do not place emphasis on protected words.

The drive to contain, control, and restrict expression that directly or indirectly references the Olympic Games is part of the larger global creep of intellectual property law that has led to the recognition of a “right of association”.3 This right gives event organisers an intellectual property interest in their event that allows them to control “associations” with the event. The result is a chill on expression that is hardly mitigated by the plethora of guidance documents4 and other publications that, in the case of the London Olympics, LOGOC has produced to inform businesses, non-profits, conference organisers, betting and tourism operators about what they can and cannot say on signs, websites, brochures and other promotional materials.

Of course, Britain is not alone in enacting laws and regulations that prohibit “associations”. Such legislation is now required by the International Olympics Committee (IOC) as a condition of a successful Olympic bid. It is also increasingly common in relation to other major sporting events as well (see, for example, New Zealand’s Major Events Management Act). Significantly, the commitment to pass such laws is made during the bidding process and in a context where there is little or no public awareness, debate or input.
It is not surprising that the UK laws are among the most sweeping seen thus far; there is a general trend towards broader and more extensive anti-ambush marketing legislation from one Olympic event to the next. It is worth noting that when the law was debated in the British parliament, the minister for sport expressly admitted that the “right of association” was drafted in the broadest possible terms because there was no consensus as to what type of conduct it was meant to catch and because the future demands of the IOC for a legal response might change.

The regulations5 passed pursuant to the law are also cast in broad terms. The definition of advertising includes just about any kind of message placed in any location that is “wholly or partly for the purpose of promotion, advertisement, announcement or direction”. It expressly captures the display of messages on a human or animal body, having a human or animal carry anything on which an advertisement is displayed, or wearing advertising attire. Going for a walk in a designated zone near an event venue with a trademark logo face-painted on one’s cheek, or walking one’s dog with a doggy blanket emblazoned with a non-sponsor’s soft drink logo would infringe the regulations if the person had “reasonable cause to believe that they are participating in an ambush marketing campaign”. Sound ridiculous? Just ask the Dutch women who were arrested in South Africa under anti-ambush marketing laws after they attended a FIFA World Cup football match wearing orange dresses supplied to them by a Dutch brewery.

Major event organisers will insist that anti-ambush marketing laws are necessary to ensure fiscal success. Complex events such as the Olympics have elaborate sponsorship regimes ranging from top sponsors to a web of official suppliers of particular wares or services. Top sponsors pay millions of dollars for sponsorship rights, and organisers maintain that these revenues are essential to properly fund the event. The sponsor who pays such substantial sums of money wants a guarantee that the exclusivity they have paid for is respected; they do not want their competitors to be able to leverage the public excitement or interest around the event for their own purposes and without paying for the right to do so.

“Ambush marketing” is a term developed in business circles to describe a range of opportunistic marketing practices that have long been a major irritant for event sponsors. An ambush marketer runs an advertising campaign that creates an association between their product and the major event. It is not necessary for the advertiser to create confusion as to their status as a sponsor; it is the mental association the consumer makes with an event that is considered problematic. For example, when Visa was the sponsor of the Barcelona Olympics, a rival credit card company launched a series of ads that exhorted consumers to remember “that you don’t need a visa to visit Spain”. Ambush marketing has been difficult to stop using traditional IP laws because ambushers are careful not to use the trademarks of either their rivals or the event itself. Although some argue that there is an unfair competition dimension to such activities, the actual harm is elusive. It is not clear that consumers are confused about who is a sponsor and who is not; nor is it clear that consumers make choices based on sponsorship status. It is also difficult to establish that the value of sponsorships is tied to the existence of this kind of legislative protection. By contrast, research suggests that the value of a sponsorship is more closely tied to the sponsor’s own efforts to leverage the association for which they have paid through effective advertising campaigns.

Yet in spite of the existence of anti-ambush marketing laws, ambush marketing by the major competitors of event sponsors remains common. Major corporations have easy access to legal departments that can find the loopholes to effectively exploit in advertising campaigns. For example, in the case of the Vancouver 2010 Winter Olympics, competitors of major sponsors determined that the legislation against ambush marketing did not limit displays of national pride. They launched high profile advertising campaigns that played on this theme (Go Canada!) to get their piece of the Olympic spotlight. While major corporations will find ways around legislation, it is the small and local businesses that are most directly affected. The local restaurant that offers gold, silver or bronze breakfast specials during the Olympics will be among those least able to fight the cease and desist letter they will inevitably receive.

By creating property-like rights in major events, governments have further shrunk the already embattled public domain and have contributed once again to the creeping propertisation of just about anything. Major events are multi-stakeholder public spectacles. There is something fundamentally important about the ability of these stakeholders – governments, community members, local businesses, taxpayers, citizens, athletes and amateur sporting organisations – to make reference to a public event that involves and impacts them in various ways. By aiming to control event-related narratives in public and commercial spaces, ambush marketing legislation places a chill upon expression that extends far beyond what is genuinely needed to protect the value of sponsorships.