Legal advice: Game on?

The rules surrounding the Olympics will be complex, warns our legal team.

By Amanda Frayne of thePublican.com's team of legal experts from London solicitors Joelson Wilson.​

The fact that London has been chosen to host the 2012 Olympics has been the source of much celebration and has received widespread support from individuals to large corporations. However, the publication of the Olympics Bill 2005, with its tough new proposals has provoked a great deal of concern from those who originally supported it.

When it was announced on July 6 that London had been selected it was immediately required to enter into the 'Host City Contract' which includes all of the commitments made in the bidding process as to how the games and the Olympic environment will be managed. This has resulted in the need for new legislation in the form of the bill.

The crux of the opposition to the Bill relates to the clauses restricting advertising within the vicinity of Olympic sites and so-called "ambush" marketing. The fear is that the cumulative effect of these clauses will result in UK businesses which are not sponsors of the games being severely restricted from gaining any benefit from the opportunity given to London to host the games.

Firstly, the Bill confers rights to the Secretary of State to make regulations about advertising in the vicinity of London Olympics events. Rather surprisingly, as is the case with the Licensing Act 2003, the Bill does not give any definition of "vicinity" and thus all advertising perhaps within 50 metres to five miles of the event may fall foul of any regulations made.

Under these powers, poster and outdoor advertising by non-sponsors could be completely banned. It was a prerequisite for every Olympic bid candidate to prove they have enough outdoor advertising space available for Olympic sponsors.

So surely any restrictions on advertising in the vicinity should be confined to outdoor advertising space? However, the wording of the Bill states that these regulations may apply in respect of advertising of any kind including that of a non-commercial nature and announcements or notices of any kind. Will this be taken as far as 'notices' outside (or even inside) pubs advertising special drink or meal deals?

Secondly, the Bill creates a completely new intellectual property right, the 'London Olympics Association right' that would be protected by the London Organising Committee.

This seeks to prevent 'ambush marketing', which is defined by the Department of Culture, Media & Sport as: "All intentional and unintentional attempts to create a false or unauthorised commercial association with the Olympic Movement or the Olympic Games."

So the current wording of the Bill creates a presumption of guilt in circumstances where an individual did not intend to create such an association. Further, an individual would still infringe the right even if the representations made were neither false nor misleading. Put simply there will be a breach of the right if the individual "uses in relation to goods or services any visual or verbal representation (of any kind) in a manner likely to create in the public mind an association between the London Olympics and the goods or services".

This seems to suggest that a pub would not, for example, be able to use slogans such as 'drink with us in the summer of 2012 and watch the games' or 'go for gold with our special games drinks offer'. Furthermore, these phrases would automatically infringe the new right as there is an immediate presumption of guilt (in the absence of evidence to the contrary) if an individual uses a combination of expressions as set out in the bill.

In other words, guilty until proven innocent. These expressions include, 'games', '2012', 'gold', 'silver', 'summer', 'London' and 'medal'. In addition, the Secretary of State may by order add, remove or vary any of these expressions.

Are we worrying over something that is unlikely to be enforced? Sadly not. The Olympic movement has always had a fearsome reputation for defending the value of its intellectual property and the official sponsors of the games. For example, at the Sydney Olympics, officials actually confiscated Pepsi cans from spectators in Olympic stadiums so as not to offend the official sponsor, Coca-Cola. Breaches of the regulations concerning advertising in the Bill could be punished by fines of up to £20,000.

Is there no hope for legitimate businesses? There are a number of defences set out in the bill, but these are at best unclear and at worst do not provide any defence at all. The hope lies in successful lobbying, consultation and the Bill being clarified so that the industry is aware what defences are available to a claim of infringement of what will be a very wide new intellectual property right.