Whenever there is a national or international cultural or sporting event, brands take centre stage in wanting to reflect the public interest and join the celebrations. However, to do so, brands need to consider how they can celebrate without giving rise to liability or falling foul of advertising regulations.
In this insight, we give a brief overview of the legal landscape and some advice/signposts to assist brands looking to celebrate events, whether it be sporting, historic or cultural, in their own communications.
What brands should be aware of?
Registered trademarks give an exclusive right to prevent third parties using:
- a mark that is identical with the trademark in relation to identical goods and services; and
- a mark that is identical or similar with the trademark in relation to identical or similar goods and services where there is a likelihood of confusion.
The organising committees of major events are likely to register a whole host of trademarks in preparation for their event. Brands will need to run a trademark search in order to ensure that they do not use identical or similar marks to these registered rights in relation to similar goods or services to the category that it is registered.
In addition to the above, the Trade Marks Act 1994 provides that third parties shall not use the following, in connection with any business, without the authority of Her Majesty (on in the case of (2) the member of the Royal Family):
- the Royal Arms (or arms so closely resembling the Royal Arms as to be calculated to deceive); or
- any device, emblem or title in such a manner as to be calculated to lead to the belief that he or she is employed by, or supplies goods or services to, Her Majesty or that member of the Royal Family.
Further, the Trade Descriptions Act 1968 is clear that it is an offence to, in the course of business, give any false indication that goods/services are supplied or approved by Her Majesty or any member of the Royal Family.
Along with any rights to take action as above, there is also the possibility of a member of the public or competitor submitting a complaint for breach of the UK advertising codes - the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) and the UK Code of Broadcast Marketing (BCAP Code). For example, the codes include rules prohibiting misleading advertising and rules pertaining to the depiction of the Royal Family and the use of Royal Arms or Emblems in advertising. Care should be taken, for example, to avoid implying an official endorsement from Her Majesty or the Royal Family (if one does not exist) or that a product is official memorabilia if that is not the case.
Specific advertising and street trading regulations
When the UK hosts major international events such as the Commonwealth Games or the Olympic Games, further legislation is usually introduced as part of the country's hosting commitments. This protects the intellectual property of games organisers and prevents brands from benefitting from an association with the event without being officially authorised to do so.
Brands will therefore need to check for any regulations which restrict the use of certain phrases or images which would suggest an association with the event. There may also be restrictions to trading and advertising in certain locations. Brands may be able to apply to the organising committees to gain permission to trade in these areas and/or associate with the event. If so, it is important to be aware of any deadlines for such applications.
Some practical points to consider
- DO check for any registered trademarks first.
- DO check the guidelines of the event organisers and for any additional regulations that may have come into force.
- DO NOT re-draw or amend any trademarks or official emblems, whether you are authorised to associate or not. There will be strict guidelines as to how trademarks and emblems can be used and they must be adhered to.
- DO NOT use any Royal Arms without permission.
- DO follow the Lord Chamberlain's Office guidelines around the use, for commercial purposes, of the Royal Arms, Royal Devices, Emblems and Titles and of photographs, portraits, engravings, effigies and busts of The Queen and Members of the Royal Family.
- DO make it clear that this is your advertisement.
- DO NOT make any suggestion of a link between yourself and the event, organising body or the Royal Family. In particular, DO NOT make any suggestion that your goods/services are supplied or approved by the event, organising body or the Royal Family.
- DO consider first asking for permission and follow official channels where provided.
- DO comply with the Advertising Standards Authority's (ASA's) general advertising rules, and DO review and comply with the ASA's Jubilee guidance.
- DO be aware that a complaint could be made to the ASA about your advertising. Upheld complaints are often accompanied by negative PR and you will be required to remove the advertisement(s) and prohibited from using it again, which may have cost implications (e.g. the costs of taking down ads and replacing them, wasted costs and opportunities, etc.).
- DO seek advice if you are unsure – either from the Gowling WLG Brands, Advertising & Designs team or from firstname.lastname@example.org.
If you have any questions, please get in touch with Kate Swaine, Kate Hawkins or Zoe Pearman.
 s99 Trade Marks Act 1994
 s12(1) Trade Descriptions Act 1968