Monday, 14 May 2012

Olympic Games: Ambush marketing, Issues and Defences

1.  The eligibility criteria for each member of NOC's team (OCM) are set out in the Olympic Charter. A competitor, coach, trainer or team official must not only respect the spirit of fair play or/and observe the regulation in the World Anti-Doping Code, but to disallow his/her image to be used for advertising immediately before, during and immediately after the Games without prior approval .

2. This ensures real exclusivity for the official marketing  partners of the Games. Olympic imagery and assets are carefully controlled and regulated. Only those sponsors known as The Olympic Partner Programme (TOP) have the worldwide rights to use Olympic rings and imagery. However, IOC also in the past has created another category of sponsor known as International Sponsors. These sponsors have similar rights but limited to selected NOCs territories only. Organiser and NOCs share in the revenues and deals (see Olympic Charter, bye laws 2.2.2.; Host City Contract, clause 48(e).

3. Why this? To combat ambush marketing. Ambush marketing occurs when a company or firm claims an association with the Olympic Games, which it does not have / sponsor / partner. This causes confusion in the minds of customers, prejudices to the Organiser and will make those TOP and International Sponsors get angry. Ambush marketers (parasite) claim a false association in many ways. Examples are (1) unauthorised use of intellectual property rights (2) advertising (3) broadcast sponsorship (4) pourage agreement and (5) corporate hospitality and ticketing.

4. I may say compared to Olympic Beijing 2008, London 2012 works smarter. Instead of sing up for Nairobi treaty to protect Olympic symbol, UK government enacted the Olympic Symbol (Protection) Act 1995 - OSPA. And to specifically address ambush marketing activities, a new law known as London Olympic Games and Paralympic Games Act 2006 (LOGPGA) was introduced.

5. What I want to emphasize in this blog is not the detail description of the LOGPGA. The first issue is about athlete’s contractual conflict. Athletes normally were insisted to wear sportswear suppliers or equipment or to visibly appear in advertising slots of sponsors appointed by NOC. And even during the competition, the athletes must wear at least sponsors logo and NOC emblem. But this leads to the situation which contradicting with the Olympic Charter. However, at the same time, refusing to wear or appear in sponsor’s advertisement may put the athlete in breach of his/her athlete’s individual contract.

6. I believe this suppose to be a well settled issue. Since 1997, these rules have been set for every edition of Olympic Games. There is a consultation between IOC and the World Federation of the Sporting Goods Industry about the matter. The reason why we do not know is either the non-intervention of OCM in athletes' individual contractual deal or the misappropriation of good intention of Malaysian sponsors towards the Games (especially without proper research). Take note that athletes cannot report his winning or act as journalists without the permission, or even blogging during the Games. This may also consider as a breach under by law to Rule 49, Olympic Charter. Strict maaa...

7. The next issue is defence. (Please read Adam et al., Sport: Law and Practice, 2008 for detail).We have to consider many aspects, for example burden of proof, concept of 'association' and whether or not a ‘commercial’ or ‘contractual’ relationship exists. Normally the ground of defence is whether 'honestly made statement' are really confusing, misleading or used in the context of the Games. And there are exceptions too. For example advertisement which are presented as a report or information on the Games, or product representation, design rights or registered trademarks which have been made continuously since prior of the Olympic.

8. Whatever exceptions or defences available, it is all about sports legal education. The law means to regulate and not means to be manipulated.