July 2005
Unauthorised Ambush Marketeers are likely to fall at the first hurdle at the London 2012 Olympic Games
In seems likely following London's successful bid to host the 2012 Olympic Games, savvy individuals and companies will look to exploit the situation for commercial gain. However, such persons, so-called "ambush" marketers, who attempt to benefit from the Olympics without proper authorisation, should be wary of the legal ramifications. The rights and use of Olympic branding are heavily protected and the passing of the Olympic Symbols etc. (Protection) Act 1995 serves to clearly and unequivocally express this intention. Interestingly, the majority of those likely to breach the Act will not be ambush marketers seeking profit but individuals, unaware of the restrictions and use the protected items in an unauthorised way such as for fan web sites. The question therefore for all prospective individuals looking to make any associations with the Olympics is what constitutes unauthorised usage.
Prior to the Olympic Symbols Act coming into force, over sixty Olympic related trademarks were registered ranging from the word "Olympic" and "Olympian". The Olympic Symbols Act amended Section 4 of the Trade Marks Act 1994, which covers specially protected emblems, by introducing a sub-clause (5) dealing with the protection of the word "Olympic", in addition to a series of closely related words: "Olympian(s)", "Olympiad(s)" and symbols such as the much celebrated five Olympic rings. The Olympic motto "citius, altius, fortius" and its English equivalent "Faster, higher, stronger", the Olympic Flame, Olympic Games logos and mascots are similarly restricted. These items can not be used or modified without authorisation. Under Section 4(5), the protected items can only be registered as trademarks if the proprietor of the Olympic Association Right (the British Olympic Association in case of the UK) makes the application or consents to it. Furthermore, the Act strictly prohibits implying any association with the Great Britain Olympic Team, the British Olympic Games or the Olympic Movement.
One key limitation of the Olympic Symbols Act under Section 4 is that its provisions do not operate with retrospective effect, where rights acquired or subsisting prior to the date of enactment, the protected signs may continue to be used. More specifically, Section 4(11) permits the continued use of a business or corporate name consisting of any of the protected Olympic related words if in use prior to the commencement of the Act.
The British Olympic Association as proprietor will have a right to an action for any infringements under Section 6. The Act also creates a right to criminal proceedings where the issuing of a substantial fine is a possible sanction. The British Olympic Association can also have an action under the Trade Marks Act 1994 for infringements involving its logo and the Great Britain Olympic Team which are registered marks. There is a further recourse through the law of passing off which can prohibit unauthorised associations. Finally, the British Olympic Association may refer to the Olympic Charter which all Olympians must agree to prior to participation. The Charter prevents entrants from allowing their performances to be used for advertising purposes.
The position in law therefore seems straightforward and the restricted Olympic related items expressly detailed. Although it is clear that the British Olympic Association seeks to protect and enforce these rights, it is important that the legal boundaries are made accessible to the nation as a whole, thus preventing unnecessary and potential costly infringements by those oblivious or unscrupulous.