Advertising and the London Olympics Act 2006 

Staging the 2012 London Olympics is likely to cost at least £10 billion. Ordinary businesses could pay dearly too, if they tread too close to the Olympic word, symbols, or other “brand property” identified by the London Olympic Games authorities.

Such is the effect of the London Olympic Games and Paralympic Games Act 2006, which became law in March 2006. Widely regarded as the most draconian Olympic sponsorship law to date, the Act seeks to protect the revenue anticipated by official sponsors of the London Games by creating broad new swathes of infringement rights in official sponsors’ favour.

The Act was designed to protect the value of official Olympic sponsorships, worth millions of pounds, by combating marketing and advertising that may lead the public to connect a non-sponsor’s brand with the Games. Focusing advertising campaigns on major, televised public events can be highly effective, but those who pay millions for exclusive sponsorships regard such tactics by others as “ambush marketing.” It is a major policy concern for any country hosting the Games because of its potential to undermine the attractiveness of official Olympic sponsorships, a major source of revenue for the Games.

As a result of the Act, businesses need to take more than the usual care with their advertising in the run-up to the 2012 Olympics, as even ads that seem intuitively fair can infringe. In particular, under the new law it is an infringement for businesses who are not official sponsors of the London Games to use, without consent, any controlled mark or mark similar to a controlled mark that could suggest a contractual, commercial, corporate, financial or other link between the user and the Games. The controlled marks include words with “Olympi—” prefixes, the interlocking rings symbol and the Olympic motto “Citius, Altius, Fortius.”

It is not enough to avoid the controlled marks, however. Businesses will also infringe if they say anything else that may suggest an association with the 2012 London Olympics. The courts are permitted to regard combinations of certain words or expressions, such as “games,” “2012,” “gold,” “silver,” “bronze,” “medals” and even “London,” as supporting a finding of such an association.

The rights are broad, and defences are scant. The use of registered trademarks is exempt, as is the honest use of one’s own name and address or indication of the kind, quality or other characteristic of goods or services. In the case of controlled marks, continuous use since 1995 may give a defence. Use since early 2006 may do so for other combinations of words.

Nevertheless, much of the normal and expected local advertising in the build-up to the Olympics could potentially infringe the law in one way or another. Using a business name or trademark in conjunction with an invitation to “watch the Olympics here” could infringe. Playing on the popularity of the games in a way which could never lead to confusion could also infringe (ie, describing staff in an advertisement as “our Olympic team”).

The Act has been in force for three years now, and has created relatively few waves considering its turbulent passage through Parliament. However, its impact is likely to grow as the Games approach, and the London Organising Committee of the Olympic Games can be expected to be vigilant against perceived abuses. While it is hoped that the law will be enforced in a reasonable and proportionate way, the wide rights conferred may prove a trap for many an unwary pub chain, restaurant, fashion house or merchandiser.

As a result, all but the smallest businesses should seriously contemplate taking legal advice before planning any advertising that refers directly or indirectly to the 2012 Games. Smaller businesses may fly under the radar, but even purely local uses can infringe and small enterprises, too, should therefore exercise caution.

For more information or to seek advice on how the Act may affect you, please contact the Trademarks Group at Jenkins.