Kate: We seem to have slowed down a little bit. Welcome. Welcome to our attendees and to our panelists. This is our webinar on the hot topic of ambush marketing. My name is Kate Swaine. I'm co-Head of our global IP team and I will be your moderator today. Now we may not always realize it but we encounter ambush marketing, as consumers, on a regular basis. Some of us may be aware of this summer's UK defamation action, which was fondly nicknamed Wagatha Christie by the press. It was commenced by Rebekah Vardy after Coleen Rooney accused Ms. Vardy of leaking her personal information to the British press. But popcorn brand, Butter Kissed, was really quick to capitalize on the media sensation around the trial and mocked up its own parody courtroom sketch, as you can see. It's a classic example of a bit of ambush marketing. Now, it's not uncommon for a brand to capitalize on a pop culture moment, or an event like this, and it can be amusing and it can be very clever. But when it comes to major sporting and cultural events it can also be problematic. So today we're going to discuss the promotion of major events and how the competing interests of organizers and rights holders, as well as sponsors and non-sponsor brands interact. Now we're going to run through some key considerations for each of these parties, and what should they each keep in mind when it comes to celebrating major events, but at the same time controlling ambush marketing and managing those risks.
So turning to our panelists today. We're very proud to be an official supporter of this summer's Birmingham 2022 Commonwealth Games, and I'm delighted that we're joined today by Zoe Pearman and Dan Smith, specialists in advertising and marketing law based in our London office, and who were both heavily involved in our Commonwealth Games work this year. Dan's experience in this area also covers multiple global events dating back to the UK's preparation for and staging the London 2012 Olympics and Paralympics. So welcome, Zoe and Dan. I'm also happy to have Jon Parker, Head of IP in our Dubai office, on our panel. Jon has worked in the UAE for over 16 years and during that time has acted for a number of sporting organizations, assisting them in protection and enforcement around significant events including, FIFA World Cups, Club World Cups, UEFA Champions League, America's Cup and the Dubai Sevens. Welcome also to Shannon. Shannon Uhera is here from our Toronto office. She's an associate practicing across a range of advertising and marketing law areas, including sponsorship agreements and ambush marketing issues. So thank you, Shannon, for joining us today. And last but far from least, Paris partner, Philippe Rousseau, joins us. Philippe is also an expert in creating and maintaining successful bank campaigns and he joins us in looking forward to the 2024 Olympic and Paralympic Games in Paris, now less than 2 years away. In the wake of the Commonwealth Games, and with major events like the FIFA World Cup in Qatar, Paris 2024 on the horizon, it's the ideal time to share our insider experience but also to run you through some practical issues and solutions. If you have a question during the session then please drop it into the Q&A box. I'll make sure that we run through those questions at the end, time allowing. If there are any issues or scenarios you'd really like us to discuss in more detail, please don't hesitate to get in touch with me or one of our panelists after the webinar. We'd be very happy to chat to you direct about that. So let's kick off.
Dan, perhaps we can start with you. When it comes to advertising centered on major sporting or cultural events, what are the competing interests to be aware of?
Dan: There's a number of different players and you're right, their interests are not always aligned. That's what sets the stage for ambush marketing. So firstly we have the event organizer or the rights holder. They're typically focused on promoting the event, staging and promoting the event, ensuring there's a consistent look and feel, meeting contractual obligations to licencees and, importantly for our purposes, successfully attracting sponsors. That's because major events, such as the Olympics and the World Cup, attract a global audience. That runs into the billions and as the spectacle of these events has increased so has the cost of staging them, and organizers have to raise money to help off-set those costs. One of the ways they do that is by selling rights of association to official sponsors. That takes us to our second player. So the official sponsor. They invest significant sums of money to help support planning, staging, organizing their event and in return for that they expect exclusive or preferential rights. Dating back to late '70s early '80s major events have tended to sell sponsorship in exclusive categories across a number of different tiers, including global and local partners, ranging down to official suppliers. For large events, such as the Olympics or the World Cup, fees for the very top tier of sponsorship are likely to be 50 million pounds or more for the event. Now that's quite a price tag. So that takes us to our third player, the unauthorized third party, the ambush marketer who wants to participate in the spectacle of the event but without shelling out those very hefty fees. So they're looking to enjoy the same benefits as sponsors, or some of the same benefits, without incurring the costs. If they do that then they deprive the event of key sponsorship revenue and may place the event organizer in breach of its obligations to authorize sponsors and to licencees. That kind of activity may also place the events future financial security at risk. If sponsors don't think their exclusive rights will be preserved then why should they, and other potential sponsors, continue to invest in the event? If they can get the same exposure for free then there's no value in official sponsorship anymore. On that basis it's imperative that the event organizers protect their brand assets and carry out necessary enforcement action against unauthorized third parties who are using those official assets. Where they have the tools to do so they'll also want to take action against those who are inferring an association with an event without permission.
Kate: When things do go wrong like that though it does present a balancing act, doesn't it, for the event organizers? Jon, your thoughts on that.
Jon: Okay, yes, so we'll look at some other challenges an event organizer may face in enforcing their rights, shortly. But I guess where it is able to take an enforcement action it first needs to consider how it balances the infective enforcement, together with the PR risk of looking heavy handed. I think even more so now in the days of social media than ever before. So a lot will then depend on where the event organizer looks to draw the line on how and when it would look to take enforcement action. So we've seen the examples, particularly with London 2012, where there was a strict approach to enforcement. One of the examples was the London 2012 brand protection team making a London café which was in short walking distance to one of the venues, paint over the letter 'O' in its name. The café was called Olympic. Also in 2012 spectators were only able to use a Visa card when buying products or tickets in the shops at Olympic venues. Again, Visa were an official sponsor of both the Olympic and the Paralympic Games in 2012. Other rights holders perhaps don't take quite of such a strict approach. There may be a number of reasons around this, such as the practical restraints. So significantly resourcing. It can take a lot of people to go around enforcing your rights. So the rights holder needs to consider whether they want to take a hard public line, particularly on the basis that the hard line might give to headlines, which then deter others from infringing its rights or whether they would be more concerned about the possibility of public backlash. So for example, will they be seen as heavy-handed if they're involving actions against local street traders or local businesses within the community where the event is taking place, not just the big brand owners, the big multi-nationals. So it's, at worst, an enforcement action could look over-reaching, bullying behaviour, denying the local community and the local area the right to participate in an event. We'll touch on it a bit more later but more and more the brand protection team for sporting events I think are aware of this, and are trying to be inclusive to a degree, by making available brand guidelines, some brand usage guidelines. These provide guidance on what the trademarks are, the images and terms and how they may be used or may not be used. I think the guidelines, it's important to remember they aren't intended to provide legal advice, but they're to give examples of what, in particular, what is not authorized in an extremely extensive manner.
Kate: There are as one. It's not just the rights holders is it, Jon? I mean there's other interested parties too. Shannon, the sponsors are going to have a very particular perspective on all of this, aren't they?
Shannon: Yes. Sponsors will have a different perspective. Part of the costs of hosting an event need to be off-set by granting exclusive rights to those sponsors who offer their significant financial support. So while event organizers will try and attract sponsors, there are certain elements sponsors should keep in mind. To start, there are clearly opportunities available to brands who partner with a major event, most notably of course, significant brand exposure that can be gained from an event partnership. Usually the aim of a good brand protection program is to ensure that only the sponsor's brands, or at the very least only the sponsor's brands within it's general category, are promoted in connection with the event and are the sole beneficiaries of the event's hype and overall coverage.
Zoe: As Kate mentioned earlier, we were the official supporters of the Birmingham 2022 Commonwealth Games. So as a law firm we're in quite a unique position because we've recently sponsored a major sporting event. So we've directly seen a number of the things that sponsors may encounter. So for example, one of the things that were key for us was protecting our exclusivity as the official legal advisors. So in addition to the Organizing Committee of the Games there were a number of entities involved in hosting and putting on the Games. That involved the City Council, athletes, etcetera, and each of them had their own legal advisors who were, to some extent, advising on the games. So making sure that we were aware of this was something of importance to us. Then on the more fun side we managed our brand exposure through sponsor activation. For example, we took over Birmingham New Street Station, the main train station in Birmingham, to announce our sponsorship and that was pretty cool.
Shannon: Thanks, Zoe. Of course, on the other hand, there are also a number of pitfalls to keep in mind. Importantly sponsors should think carefully about whether it benefits their brand to associate with the event and the organizer. Sponsors should consider whether the brand values of an event and it's organizers and whether they align with their own. Sponsors should also be mindful of potential risks; if a sponsored event cannot occur or is unable to move forward as originally planned. This is something that was of course recently highlighted by the COVID pandemic. Following the pandemic there may continue to be a nervousness from sponsors to sign on and commit a significant financial sum. Although this is likely a concern that's lessened over time, sponsors may still be cautious about investing large sums of money without any certainty that the event will proceed as planned. With respect to sponsorship agreements, sponsors should ensure that they put in place a sponsorship agreement that addresses all of their concerns as far as possible.
Kate: So what do you think makes a good sponsorship agreement then, Shannon?
Shannon: Continuing on the topic of the pandemic and related risks to sponsored events, a good sponsorship agreement should account for potential cancellations or changes, and what happens to a sponsor's season benefits if such a situation were to occur. More generally, a good sponsorship agreement, from the sponsor's standpoint, must also of course set out clear exclusivity terms, details of the expected brand exposure and the sponsor's control of such exposure. So that is the sponsor's approval rights and the organizer's right to use or not to use the sponsor's own branding in connection with the event, as well as responsibility on the event runner to protect it's official sponsorship rights.
Kate: But it isn't just, is it, about the taking advantage of events and it isn't just the sponsors that want to take advantage of events. So, Philippe, could you explain a little about what ambush marketing actually is?
Philippe: Marketing ambush includes any promotional activity by non-sponsors in connection with a major sporting event, or major sporting events, to tackle this. While official sponsors spend vast sums of money for the right to promote themselves alongside the event, non-sponsor brands look to take advantage of benefits, exposure, good will assignment and coverage by affiliating themselves with the event in an unofficial way. There are, of course, several kinds of ambush marketing. First, well known ambush by association. This is when a marketing campaign in constructed in a way, of course without authorization, to allude to the event directly. As a result the public is misled into thinking the ambushing brand is connected to the event and the brand can gain good will be association. The most obvious examples are when an event's particular marks are used, such as where a local butcher created the famous Olympic rings out of sausages, to celebrate the London 2012 Olympics and Paralympics. But more often, particularly when it comes to bigger brands who are more savvy to the restrictions in this space, references tend to be more indirect and then ambush marketers simply do not need to use the words such as Commonwealth Games, Olympics or other copyright protection. They just rely on illusions, allowing the public to make the association with the event. For example, another one, Paddy Power ran a campaign in the lead-up to the London 2012 Olympics. They were not an official sponsor but ran ads announcing they were the official sponsor of the largest athletics event in London this year. This was in reference, in fact, to an egg and spoon race in London. A lovely small city in the Burgundy region in France. While Paddy Power had alluded to the Olympics, they made no direct references, and ultimately no legal rights were infringed.
Dan: Just to add something here. There's also one of the most obvious forms of ambush marketing which is ambush marketing by intrusion. So that's where a brand seeks to gain significant and unauthorized brand exposure at the event itself, either by finding a way to splash its branding in or around the stadium, by co-opting athletes on the field of play, or spectators in the crowd. So classic example of this is the supply of Beats headphones to athletes at London 2012. So headphones were made available to athletes, particularly swimmers as I remember in their country's colour, without any particularly overt advertising. Athletes collected the headphones and went onto where them during the Olympics on the field of play, and in posts to social media, giving Beats significant exposure as a non-sponsor. Another well known example of this Dutch beer company, Bavaria. So many of you will remember this. This was an ambush at the South African World Cup in 2010. Female supporters, a big group of female supporters, in the Netherlands against Denmark game were seen wearing orange outfits and doing a choreographed dance, which echoed the branding and themes associated with a Bavaria ad campaign. Now Budweiser was the official beer partner at the time and officials evicted the supporters, the women in orange dresses that you see there, and in some cases they were arrested. But not before the camera's had focused in on the women in a way which delivered significant media value to Bavaria.
Philippe: Yeah, and we've seen similar attempts at association in France in a quite famous case judged by the Paris High Court in December, 2020. The Cannes Film Festival sued Christian Dior for copyright infringement, trademark infringement and parasitism, alleging ambush marketing practices. It was based on Instagram stories about the so-called brands muses during the Cannes Film Festival and Dior was accused of suggesting that it was an official partner of the Festival. Then the Cannes Film Festival argued that the videos give the impression that there was an official partnership between the company and Festival when it was, of course, not the case. The Court found acts of parasitism in a very detailed judgment where it sanctioned, in a quite specific manner, I quote:
"The incrustation of the … signs from the visual of the poster which tends to suggests the existence of a partnership even though at no time does Christian Dior expressly claim the status of official sponsor."
The Court also pointed out the use of hashtags such as #atyourcanne, #atyourmakeup, #atyourskin, #atyourdior, #butbackstore. So they were skilfully partitioned during key moments of those videos and they also allude to the commercial side of Dior. So this participated in the same way as the incrustation of the Dior trademarks in an attempt to associate Dior with the image of the Cannes Film Festival and of course to benefit from its large economic value.
Zoe: We also have what's called opportunistic ambush and this is marketing that's done in reaction to topical events or something that happens within an event. So advertisers will quickly jump on this and highlight it in their advertising. It's often done in a tongue and cheek manner and tends to be less likely to confuse the public so they're less likely to think that there is an official connection between the brand and the event. As a result that can make it even more difficult for rights holders to tackle. So we saw an example of this at the 2012 London Olympics. So the Olympics officials mixed up the South and North Korean flags at the Women's football match. Specsavers jumped on this opportunity and included a strapline:
"Should have gone to Specsavers (as they might say in North and South Korea)"
but ultimately no action was taken over this. Another one is that during the 2013 Super Bowl there was a power outage which caused the lights to go out for over half an hour. Oreo jumped on the opportunity and tweeted an ad that read:
"Power out? No problem. You can still dunk in the dark"
It was the timing of the tweet that was enough to make the connection for the games audience, triggering high levels of engagement but they kind of side stepped any risk of infringement claims. Then one thing we just wanted to flag is that it's not just sport. You may remember that there was a Best Picture mix up at the Oscars a few years ago where La La Land was awarded Best Picture instead of the actual winner, Moonlight. So again, Specsavers launched an advert:
"Not getting the Best Picture? Should have gone to Specsavers"
Kate: If you like that one. I mean one of the things you can see is the examples really bring those issues to life and so in the on-demand version of this webinar we are going to include some further examples. They're going to consider the situations from the perspective of both the event organizer and the ambush marketers. I hope our attendees will find that really useful. But turning back to the issue that ambush marketing actually raises, Jon, you mentioned earlier that there are difficulties for events organizers seeking to force. Maybe we can now look at what assets are in play and where the potential weaknesses against sophisticated ambush marketing, the kind of stuff we're seeing now.
Jon: Okay. Thank you, Kate. So event organizers will want to create brand assets that are unique and immediately recognizable. These are brands, of course, that should act as a badge of origin, letting consumers know that anything carrying the official branding either emanates from the event organizer or is somehow connected to the event in an official way, such as unofficial sponsor. So brand assets should also act as an indicator to consumers of the organizer's values and in turn imply that any third party brands, that are associated with the event, may also be trusted in the same way by consumers. We'll touch on shortly on how event organizers spend significant sums of money developing the event's brand identity and then securing necessary registrations to protect these brand assets. So often the organizers will typically register at least a name, and the logo mark of the event is trademarked, and on screen are some examples. So the organizers of the Birmingham 2022 Commonwealth Games, registered "B2022", and "Birmingham 2022" as well as logo marks. The IOC, so the Olympic Committee registered "Paris 2024" as well as different logos for the event that's to take place in 2 years time. An interesting one, perhaps, is the Rugby World Cups. So they've registered the individual mark, "France 2023", as well as logo marks for next year's event but also the French Rugby Federation also obtained registrations for the word mark, "France 2023". So later this year we'll see the FIFA World Cup in Qatar. FIFA has already secured over 600 trademark registrations in Qatar alone, which include registrations for "FIFA World Cup", "Qatar 2022", "World Cup 2022", etcetera, and some of the marks you'll see on screen now. These are examples of cautionary notices that FIFA have been issuing over the last number of years, putting people on notice of their rights around the event, and this also includes local language advice. Local language versions of the cautionary notice, such as on the next slide, which I think we'll just get to shortly. So where event names and logo marks are registered trademarks, then use of those event names and marks in the course of trade and without consent, can amount to infringement. What we often see as well is, in addition to the trademark registrations such as those on screen and that we've touched on, event organizers often secure additional protection in the form of specific legislation. So again, looking at the upcoming event in Qatar, the Qatari Government positioned a number of related laws outbound this year's FIFA World Cup. These include a law on the protection of trademarks, copyright and related rights of FIFA, but also one for measures for hosting the World Cup, and these laws together with others, which we'll touch on later, offer additional legislative protection to a broad range of IP rights and the commercialization of those rights over and above the registered trademarks FIFA has obtained.
Kate: We have talked a lot about obviously trademarks because they are very valuable when it comes to these events, but it isn't just about trademarks, is it? Zoe, you were involved in the work on the Commonwealth Games, so what approach did you see taken there?
Zoe: Yes, so in addition to the trademarks that Jon mentioned, event organizers may also seek to register the appearance or the shape of certain products as designs. So at the Commonwealth Games they registered the shape of the baton for the Queen's baton relay as a design. They also registered the shape of the medals and also the mascot, Perry, in various different poses for all registered designs. Also many aspects of an event could benefit from copyright protection. So that could be unregistered event logos, the mascot, event anthems, photographs, footage, stuff like that could all be protected by copyright. Then when any of those are copied the relevant copyright owners, so here the event organizer, may be able to announce an action for infringement.
Kate: Those traditional approaches to infringement, they're obviously really important tools, but I know they do have their limitations as well in this context.
Zoe: Yes, so in addition to trademarks, copyrights and designs, in the UK event organizers can also rely on passing off. So this occurs where a brand owner has goodwill in the goods or their services and there's a reputation, and then when a third party comes along and makes a misrepresentation which may lead the public into thinking there is a connection, and that's where that misrepresentation can cause damage. A passing off can also extend more widely. So it can cover, for example, false endorsement or association. So where you make it look like you're authorized or a sponsor but you're not. If we just run through that in the context of ambush marketing, there is likely to be goodwill for the event organizers. These, by their nature, are major events so there will be that required goodwill. The misrepresentation would be if a member of the public was confused or deceived into thinking that a third party organization was connected with the event when that's not the case. So that may be by an official sponsorship relationship and then the event suffers damages as a result and that would be kind of loss of sponsorship opportunity. So kind of all of those rights, including passing off, are useful tools but they can be relatively a weak form of protection. It's particularly clear that when you've got a sophisticated brand or would be ambush marketer that they would be able to kind of avoid these traditional IP rights, so that they'd be able to create an association without directly infringing any IP, and likewise Dan, I know it may be quite easy for sophisticated ambush marketers to avoid the advertising rules in the UK.
Dan: Yeah, yeah. That's definitely right. The UK advertising rules mean that if an event organizer feels that a third party's brand advertising is misleading, or if it takes unfair advantage of trademarks, or it implies an endorsement that it isn't genuine then the organizer could seek to take action before the UK's Advertising Standards Authority, which is the body which administers the self-regulatory system of advertising standards in the UK. However, we know from past decisions that it will often be pretty difficult to establish that consumers are misled by non-sponsor advertising. So sponsors tend to shout about their official status and, if there's no official logo there, no team image, no specific claims to be official, the public are perhaps unlikely to be deceived and that this is the finding of the ASA in the past. So in a historic decision, their view was that the public would expect an official sponsor's advertisement to include specific claims, such as official sponsor or official partner. Then in the UK we also have the consumer protection from unfair trading regulations which implemented the Unfair Commercial Practices directive in the UK. Again, on the face of it, they might seem like a useful tool in an event owner's battle against ambush marketing because they prohibit companies from claiming a product has been approved or endorsed when it has not, or giving false information to consumers, or deceiving consumers through misleading acts and omissions. They're also enforced by trading standards in the UK, who have a broad arrange of powers at their disposal, including criminal prosecution. However, in practice, they have again tended to be one of the weaker weapons in the event owner's arsenal. It's been relatively straightforward that a sophisticated ambush marketer to allude to an event without breaching these regulatory requirements.
Shannon: And to build on that overview from Canadian standpoint, similar to the advertising rules in the UK, referencing organized events without official sponsorship or implying that official sponsorship relationship exists when it does not, can also be captured by Canada's industry rules against inaccurate, deceptive or otherwise misleading representations. Canada's advertising industry self-regulatory body is Ad Standards, which publishes and regulates the Canadian code of advertising standards. In addition to complying with the legislative requirements, advertisers in Canada must adhere to the basic criteria for acceptable advertising practices that are detailed within this code. Which includes rules that can apply against ambush marketing. So for example, if an advertiser, such as an event organizer or official sponsor, believes that a competitors advertising is deceptive, that it copies the slogans or illustrations of another advertiser in a misleading manner, or if it uses an endorsement that's just not genuine, then the advertiser may submit a complaint on these grounds under the code to Ad Standards. Ad Standards decisions may result in a request to amend or withdraw the offending advertising, which is certainly quite the costly risk for advertising and engaging in ambush marketing practices. Also from a misleading advertising perspective, ambush marketing ads risk being subject to Federal and Provincial legislative prohibitions against false or misleading representations regarding implied sponsorship or approval. From a trademark standpoint, ambush marketing can also be regarded as a prohibited form of passing off under Canadian trademark law. There is some more to what Zoe outlined with respect to passing off under UK law, passing off in Canada can occur when a business promotes itself in such a way as to breed the false impression that its product or business is somehow approved, authorized or endorsed by another party. Of course, with that said, it's important to note that case law on the topic of ambush marketing is limited in Canada and the various heads of liability can typically be quite difficult to prove in this area, especially where there are sophisticated ambush marketers operating in a manner that's not a very clear infringement of official rights or the advertising rules. Regardless, there's still risk that a brand owner or an official sponsor could take issue with ambush ads, arguing that the ads are a form of passing off or that they're otherwise false or misleading, and move to defend their sponsorship and official endorsement rights.
Kate: Thanks, Shannon. Philippe, in the build up to Paris 2024 all of this has been extremely important. So what steps can be taken in France under typical brand enforcement, advertising regulations or other legislation in order to assist?
Philippe: Passing off is a common right available in the UK so it's quite similar to the French notion of parasitism, that goes hand in hand with unfair competition, and according to which an entity or individual uses the notoriety of another in its activities is likely to engage in … liability. The French Supreme Court has defined that it is contrary to fair trade practices to engage in parasitic activities which consists, sorry to quote:
"Of one economic agent interfering in the wake of another in order to profit, without spending anything, from his know-how and investment not protected by an intellectual property right"
and the Court has also emphasized from the fact that the freedom of trade cannot authorize any agent to create and maintain confusion to the detriment of a partner of an event, in that the later alone as partnership means guaranteeing it title of official partner not to misled the consumer as to its qualities and to turning away him from its competitor, thus taking advantage with that entire purse of the investment made by the related finances partnership. The use of references to Olympic symbols and the world of games for commercial communication operation has quite systematically been sanctioned on the basis of parasitism in France. Even the co-contractor of event organizers is likely to engage its total liability if it exceeds the scope of the contractual prerogatives in benefits from through the agreement concluding with the organizer. Of course this implies that the organizer is able to evidence the fact that the co-contractor had violated its rights and that it has eventually caused damages. All those decisions go hand in hand with several provisions of the French consumer code and misleading commercial practices like in the UK, for example. Jon, what about the UAE and surrounding region?
Jon: Hi, Philippe. Thanks. It is similar here so we are unable to rely on passing off, for example. So in the UAE we would explore protection through unfair competition laws. So again, arguing that the uses by somebody who has no rights or legitimate interests, who's not a franchisee, licencee or a related entity to an organizer. So by arguing and then proving that the target was making commercial use of the rights in an attempt to deceive or mislead consumers and trade off their reputation, then there should be a strong argument that unfair competition would succeed. I think the difficulty here with the unfair competition, and similar within the region, is that the administrative enforcement officials are unlikely to consider that on its own as a way of stopping the activity. Instead you'd likely to have to bring an action before the civil courts because the administrative enforcement officials, they're used to dealing with registered rights. By bringing a civil action this could mean lengthy court proceedings. But having said that, and I think perhaps touching back to something Zoe said about non-traditional type rights throughout the registered rights. Something else to consider in the region is that in recent months one of the leading religious bodies in Saudi Arabia, who advised the King of Saudi Arabia, so this is the Permanent Committee for scholarly research, IFTA, has issued a statement on intellectual property right infringements. That statement is that Islam forbids IP right infringements and so the statement says there's a requirement that persons respect the rights of others, and also issues a warning against using other people's rights or other entity's rights, without the owner's permission. So this is something that perhaps can be used and we may see being used more and more in these cases. In used in this statement, and referring back to the Permanent Committee, it may allow event organizers or other rights holders to use this statement alongside other avenues. So whether it is misleading advertising, but also bringing in the statement from the Permanent Committee as well, to try and support your case.
Kate: What about consumer protection legislation, Jon? How does that fit into all of this?
Jon: Thanks, Kate. In relation to the Federal and national IP laws, rights holders and officials can look at some of the other laws, as we touched in the UK, to protect consumers. So this could be through specific consumer protection laws, which protect against the misleading advertising, the unfair competition laws that we just touched on. I think something that perhaps, again in this world of social media to keep in mind, is there could be a possibility of using the cyber crime laws. I think these can have a real powerful deterrent because they carry hefty fines and potentially criminal sentences and criminal sanctions. So these are something to perhaps look to in appropriate cases. I think throughout the Gulf countries, what you normally find is there isn't really one specific advertising law that could be relied on to try and stop ambush marketers. What you'll normally end up looking at is a framework of the different laws and also royal decrees, standards, guidelines, including media related laws that are available in each country, which can then be used to try and give you a possibility of taking action against the infringing activity. But I think, again, all this is aimed very much around protecting the consumer particularly against misleading activities or misleading activations.
Kate: We talked there across a number of countries about the existing legislation that's in place but specific legislation also comes into play, doesn't it, Dan?
Dan: Yeah, that's right, Kate. Organizers at the very biggest global sporting events, and those which command the highest prices for official sponsorship packages, have looked to address some of the difficulties in using existing IP rights and existing legal rights to control ambush marketing by demanding specific legislation be put in place for the event. So some of you might remember the specific legislation brought in for the London 2012 Olympics and Paralympics and similar far reaching legislation has been enacted in countries hosting other major events. That kind of legislation is usually a requirement imposed on the host country by the most powerful event organizers as a condition of staging the event. So that is being awarded the event is what drives the primary legislation. So for example, organizers of the Birmingham 2022 Commonwealth Games relied on the Birmingham Commonwealth Games Act 2020, the Games Act, and the Birmingham Commonwealth Games advertising trading regulations 2021 for additional protections during the games. These protections extended significantly beyond those provided by the usual IP rights, making it much more difficult for ambush marketers to be effective. So for example, indirectly alluding to the event, and by doing so avoiding the risk of a claim based on the infringement of IP rights, could still amount to an actionable, unauthorized association under the Games Act. The organizing committee for the Birmingham Commonwealth Games also published guidance on the right of association and, as mentioned before, which set out organizations could and couldn't do. In particular it took a similar approach to past Olympics by specifying that certain combinations of the words "Commonwealth Games 2022", "Birmingham", "Medals", "Sponsors", "Gold", "Silver", "Bronze" or the use of those terms in reference to sports or cultural events were likely to amount to an association that infringed the association rights. That list of words wasn't an exhaustive list, and in practice, the organizing committee looked to taking enforcement action against a much broader range of associations. References to Commonwealth Games, events and athletes in advertising were particularly risky. Other countries hosting events have looked to structure their legislation in different ways. So it might be limited to a particular event and fall away once that event is over, or as in Italy, it might be drafted on a more ongoing basis to capture a broader range of major events. So Queensland in Australia, for example, relied on its Major Events Act as the primary legislation when the Commonwealth Games were held there on the Gold Coast in 2018.
Kate: Shannon, have you seen similar specific legislation in Canada for events like this?
Shannon: Yeah, the Olympic and Paralympic Marks Act was introduced in Canada in anticipation of the 2010 Vancouver Winter Olympic Games and certain prohibitions under this legislation still do apply today. For example, the Act contains a prohibition against the use of certain Olympic marks or Olympic resembling marks, and as a result if a company's looking to attract attention through unofficial use of a mark, similar to an Olympic mark in Canada in advance of the next Olympic Games, that company would risk contravening this legislation. It's also worth noting that Canada's Trademarks Act provides protection for what are known as official marks of certain public authorities, and where an official mark exists, third parties are prohibited from adopting a mark that consists of, or is likely to be mistaken for, that official mark. For example, Soccer Canada is an official mark afforded protection under the Trademarks Act against activities that may be involved in ambush marketing.
Kate: Jon, Philippe, are you seeing new legislation coming into play for Qatar and Paris?
Jon: Yes, we are, Kate. So as I mentioned briefly earlier, the Qatari Government has issued a swathe of laws for the World Cup this year, and there are specific provisions in some of these laws relating to ambush marketing, and also unauthorized use of the event IP. So these laws go far beyond the use of the registered trademarks that we hear FIFA have registered and they cover other IP rights such as copyright. The laws also contain provisions relating to unfair competition, broadcasting rights and advertising rights in relation to the event. But there are also laws around the hosting of the event as well which cover things such as hotel prices, flight prices in and out of Qatar during the event, data protection and, I think interestingly, also laws around easing the ability of obtaining Visas for both companies that are working in and around the event, or visitors to the country to watch the event as well, but also for those companies that have to set up businesses as part of the event. So it could be broadcasters or other sponsors, etcetera, that need those companies specifically for the event and then shut them down shortly after. There are a wide range of laws around this year's event in Doha. Recently the UAE hosted Expo 2020. It was delayed because of COVID so it ended earlier this year. But this was a 6 month long global exhibition here in Dubai. Interestingly there was no specific legislation put in place around the IP or marketing aspects of the event. But again, the organizers relied on extensive registered IP protection for various marks, the existing Federal laws, but again relied on the brand guidelines that we've heard a few times this afternoon, to try and show people how they could avoid breaching any IP rights that were in place around that event. Why didn't they have a specific legislation? I'm not sure. It may well be that perhaps they took the view that it wasn't as consumer led, as perhaps a large sporting event, and so that could have led to the difference in the approach by the organizers for our Expo 2020. Philippe, we have Olympics 2024 coming up. I'm assuming France has enacted laws ready for that event.
Philippe: Absolutely, Jon, yeah. The … of March 2018 on the organization of the Olympics in 2024 as well as various articles of the sports code are relevant, with regard to this point, but before this entry into force the French courts had already sanctioned that simple evocation of the Olympic Universe by the sign imitating the rings and the Olympic term during the Rio Olympic games on, I don't remember the date but it was clearly before this law has been entered into force, and they considered that this used by an economic actor having no status as a partner in the event was likely to constitute an infringement of the legal rights of the organizer, infringement of its corporate name as well as an act of parasitism, and since March 4, 2022, French law aimed that democratizing sport in France as expanded ownership for Paris 2024, making the French National Olympic and Sports Committee the sole depository of the terms, "Olympic", "Olympian" and "Olympian". Of course, except, in the common language for non-commercial use and so it is thus absolutely excluding any use of one of those terms for promotional or commercial purposes, for excluding any risk of causing confusion in the mind of the public with the Olympic movement.
Kate: Thank you, Philippe. So we talked a lot about the legislation but if we turn back to contractual and practical controls, Zoe, what can event organizers seek to put in place?
Zoe: There are definitely contractual and practical measures that can help here. So for example, you could seek to impose clean venue obligations when you are contracting with venues and putting them into the venue contracts. So for the Birmingham Commonwealth Games the organizing committee had a clean venue requirement in their venue agreements. So that meant that the venue providers who are hosting the events had to provide the venues clean from third party branding. We also saw that they looked to impose no marketing clauses in their contracts with contractors or suppliers to kind of prevent the suppliers from shouting about the work that they've been doing on the Games. Also within the ticketing terms and conditions, that everyone ticks when you're purchasing a ticket, you can seek to include a prohibition to stop spectators from engaging in ambush marketing and then making sure that these are enforced by security staff. So this is like what we saw at the World Cup that Dan spoke about earlier. Then to the extent possible, try and prevent non-sponsor brands handing out promotional freebies to spectators, or them refusing to allow those spectators into the event if they have got these non-sponsor brand freebies. Then as a practical measure, it may be worth thinking in advance and taking control of the billboards and the advertising space near event venues and major transport hubs. This is what we saw at the Olympics in 2012 did in London. They kind of took over the boards near the events.
Kate: Dan, these contractual and practical considerations, they apply just as much to the athletes, don't they, as well as the actual venues and the events themselves?
Dan: Yeah, they do and as we saw earlier, athletes can form part of an ambush by association or an ambush by intruding into the event space into the field of play. So organizers of major events also look to impose restrictions on current athletes appearing in advertising during the event, since associating with an individual competitor, or a team participating, might give rise to a wider association with the event. Often, obviously, individual athletes and teams have their own lucrative sponsorship deals with brands. In order to prevent individual athletes becoming a vehicle for ambush marketing by brands, other than the official sponsors, the organizers may put in place restrictions on the promotional activities which participants can be involved in while they're competing. So for example, the most well known, is that the International Olympic Committee's Olympic Charter includes rule 40. Historically, rule 40 was used to stop athletes, coaches, trainers, officials, etcetera, participating in the Games from allowing their name or image to be used for any marketing or promotional purpose during the event. Practically what was meant was that Olympic athletes and their support teams could not appear in any adverts for the period starting 9 days before the Opening Ceremony and ending 3 days after the Closing Ceremony of any given Olympic Games, with equivalent rules in place for Paralympics. As you can imagine that caused some tension with athletes because they are dependent on their relationships with personal sponsors for their livelihood. Rule 40 has now been relaxed, to a certain extent, to allow some limited opportunities for athletes' personal sponsors that are not official sponsors of the event to advertise. So personal sponsors are able to use athletes and others during the Olympic Games provided it's done in accordance with principals which are set by the IOC. After the most recent Olympic Games in Beijing, the British Olympic Association put out guidelines setting out these key principals, and these were the advertising is generic. That's it not focused on the Olympics. That it does not contain any references to all intellectual property of the Games, the Olympic movement or, for the purpose of British athletes, Team GP. There was a requirement in that advertising be in the market a minimum of 90 days before the Games period and that it then continue in a consistent way. So those personal sponsors couldn't change the nature of the advertising or opt for frequency of the advertising during the Games itself.
Kate: Thank you, Dan. So we talked about examples, we talked about ways to protect and enforce, we talked about legislation but let's finish off with some practical tips for each of the parties involved. So, Dan, I'm going to come back to you again. Do you have tips for third party brands?
Dan: Yeah, definitely. It's always going to be a balance between the benefit and the risk. But to mitigate the risk you're going to be looking, as a marketer trying to profit in some way from the hype around an event, you're going to be looking to avoid the obvious infringements. So don't use the official marks. Don't use official photos, broadcast footage, athletes' names, images, etcetera, without permission. Avoid using team logos and uniforms without prior consent. Beyond that, check whether you're caught by specific event legislation. For example, in an Olympic host nation. Don't do anything, if you are, that directly implies an association with the event and instead look at lower risk mechanisms. So for example, can you develop some kind of generic theme in your campaign around sport in general, or around the location of the event, so Birmingham in the case of the Commonwealth Games, or just picking up on themes of celebration. We saw the London 2012 Olympics but many advertisers combined the Jubilee and the Olympics into advertising themes of Britishness and national celebration. Look at using generic language: team; medals; podium; stadium, athletes. But again be cautious if specific event legislation exists. Think about what you're trying to achieve as an organization and consider the potential PR consequences of ambushing a major sporting event. Look for specialist legal advice before running a campaign. That way you can be sure you know the associated risks. You can be sure that your campaigns and materials are cleared in advance and you go into the whole thing with your eyes open. Also, avoid reposting official content. Just because it's freely available on social media and the platforms allow you to repost or republish, that doesn't mean you'll avoid legal action from the organizers, who have nowadays a much closer idea of what's happening on social media. In general, you just need to be aware that while the potential benefits are great in terms of media exposure, so are the risks. If you get involved in this space you may well be on the receiving end of action from the organizers, especially where you're a competitor of an official sponsor.
Kate: That's great, Dan. So, Jon, what about if you're an event organizer? What tips can you give the event organizer?
Jon: Thanks, Kate. I think to start with it's consider your enforcement strategy. As we touched on the at outset, where is your line? What are your biggest priorities? So these need to be considered in line with your budget and resources so you have an expectation, or at least some prior guidance, as to who you would go after and when. Where will your line stop? Perhaps again with social media, perhaps have your PR on standby as well to try and manage any fires that may unexpectedly arise. I think carefully consider the registered protection that should be sought. We've seen a lot about trademarks this afternoon, this evening, this morning, wherever you are, but don't forget the other IP rights. They could be design protection that could be obtained. In some countries you could go for copyright recordals as well. These remain incredibly effective tools, particularly where you are looking to enforce against online misuse or unauthorized use of the brands and IP rights. Then as we touched on towards the end, if you are an event organizer, consider trying to obtain event specific legislation where you can, because this may be able to underpin and perhaps even advance the protection over and above any registered IP rights you manage to secure through your event.
Kate: Shannon, any closing tips for the brand sponsor?
Shannon: Yes, similar to what Jon mentioned for the event organizers, sponsors should carefully consider what registered trademark protection should be sought to help enforce the rights if needed, and sponsors should also ensure that the event organizer is required to take steps to protect the event and their official rights against ambush marketing within their agreement. The event organizer should be required to take active steps such as pursuing legal remedies if it, or the sponsor, becomes aware of the ambush marketing. Sponsor's should consider setting out in the sponsorship agreement what remedies are owed by the event organizer if it fails to take steps to protect against, or to stop, ambush marketing practices that they become aware of.
Kate: That is great, Shannon. Thank you all. Just questions from our attendees. We have one question and I'll ask a couple of you what are your thoughts on this. So are the statutes we talked about being implemented for specific sport events, are they simply covering gaps in the existing IP laws, or can they be a little bit heavy-handed? Dan, let me ask you that first. What's your view?
Dan: It depends who you're advising. I'm sure an event organizer would say they don't go far enough and an ambush marketer would say they're exceptionally heavy-handed. I suppose in a way they can be unsatisfactory because the devil is in how they're enforced. They give the event organizer, the rights holder significant amounts of power to determine where the line is. What is a right of association? We can see that power exercised in a very strict fashion, as we did at London 2012, against local businesses as well as some major brand owners, sophisticated ambush marketers competing with the sponsors. All we can say, a more relaxed participatory approach to enforcement where the local area is drawn into the sub-halo, the benefits, the celebration of the event and powers are reserved for going after the more egregious examples of ambush marketing.
Kate: Yeah, I note that in the advice that we were giving over the summer, the word "proportionality" came up a lot. Philippe, do you think that kind of balanced, measured approach is going to be one you're going to be taking to Paris 2024?
Philippe: Yes. According to my past experience during previous Olympic Games, I can consider that it's going to be extremely, firmly applied by French jurisdiction. I know, even if it's supposed to be secret, that instructions have been given 3 years ago to jurisdictions in France to be merciless with the parties infringing or related to the Olympics rights. I've experienced that a few years ago, so I'm bound by professional privilege, but believe me it is to make clear that it's going to be applied quite firmly and strictly.
Kate: I'm very conscious of the time. We are at the end. Thank you so much to our panelists today. You have been superb, as always. I hope that our attendees will feel ready to go off and plan their strategy for the next major event they're involved with. If you do have any more questions, I'm sorry that we have set so little time today for questions, please don't hesitate to follow up with the panelists. Please also do take some time to do the short survey and let us know what we can do better next time, what we've done well or any suggestions you have for topics you'd like us to cover. The full video of the webinar, as well as our slides, is going to be circulated to you within the next week. Those will also be available on-demand on our website, together with earlier episodes of our webinar series, and more thought leadership on current hot topics for brands. So thank you. Thank you for joining us and I hope you enjoy the rest of your day. Thank you.